MAJOR CIVIL CASE MEDIATION PILOT PROGRAM · Settlement Rates - Other Factors––––––––––––––––––– 16 ... Personal injury cases make up the bulk

MAJOR CIVIL CASE MEDIATION PILOT PROGRAM

17th JUDICIAL CIRCUIT OF ILLINOIS

PRELIMINARY REPORT

Keith Schildt Principal Investigator

James J. Alfini Patricia Johnson Project Director Research Associate

1994 College of Law

Northern Illinois University DeKalb, Illinois

ACKNOWLEDGMENTS

This report could not have been conducted without the cooperation and assistance from the17th

Judicial Circuit of Illinois, the 17th Circuit's ADR Center and staff, and the Local bar. We would

particularly like to acknowledge the support and cooperation of Chief Judge Harris H. Agnew.

Special thanks should go to the "Pilot 13" mediators, who provided feedback on the evaluative

procedures and endured endless questioning. The funding for the research was provided by the

M.R. Bauer Foundation and a debt of gratitude is owed to Mr. Kent Lawrence of the M.R. Bauer

Foundation for his enthusiasm, encouragement and insight into the ADR process. Faculty

members from the Political Science Department and the College of Law at Northern Illinois

University provided special support and assistance, of special note was the assistance provided

by Associate Professor Paul J. Culhane. Last, but not least, litigants and their counsel were

instrumental, giving their time and providing a rich bounty of information.

TABLE OF CONTENTS

EXECUTIVE SUMMARY ��. ii

INTRODUCTION�� 1

MEDIATION PROCESS AND THEORETICAL ANALYSIS �� 6

METHODOLOGY��. 10

RESULTS OF THE EVALUATION��. 14 Settlement Rates - Case Type��. 14 Settlement Rates - Age of Case��.. 15 Settlement Rates - Other Factors�� 16 Post-Mediation Effects on Non-Settled Cases�� 20 Over-Confidence as a Barrier to Settlement�� 21 Quality, Pace and Cost�� 22 Perceptions of Pace��. 22 Perceptions of Cost��. 23 Perceptions of Quality - Participant Satisfaction��. 23 Perceptions of Quality - Justice and Fairness.�� 27 Perceptions of Quality - Assessment of Mediators ...........�� 29 Mediation as a Discovery Tool .................��. 32 Voluntary vs. Mandatory Participation .......�� 32 Findings�� 33

CONCLUSION�� 36

APPENDIX �A�: Questionnaires with Summary Frequencies

APPENDIX �B�: Factor Analysis of Mediator Tactics and Techniques

APPENDIX �C�: General Order and Miscellaneous Court Forms

APPENDIX �D�: Interview Question Guidelines

APPENDIX �E�: Updated Pilot Program Statistics

MAJOR CIVIL CASE MEDIATION PILOT PROGRAM

17TH JUDICIAL CIRCUIT OF ILLINOIS

EXECUTIVE SUMMARY In early 1993, the 17th Judicial Circuit of Illinois began a pilot program to refer major civil cases to mediation. The program�s objective is to divert major civil cases from the traditional litigation process by utilizing mediation as an alternative dispute resolution mechanism. Under a grant from the M. R. Bauer Foundation, the Northern Illinois University College of Law conducted a study to assess the pilot program�s impact on major civil case processing. At this juncture, the research strongly suggests that the pilot program has been quite successful. To ascertain the impact of the pilot program, a research design was structured utilizing survey as well as archival data collection to examine a number of the most significant issues relating to the mediation of major civil cases. These include: the participants� satisfaction with the process and the mediator; perceptions of justice and fairness; settlement rates; the types of cases that are amenable to such a process; the effectiveness of different mediators; and perceptions of cost and pace of case processing. While this is a report of an ongoing program, analysis at this stage suggests that: 1. In total, 149 cases have thus far been referred to mediation; 107 of these have been

mediated with the remainder pending mediation. Approximately 44% of the cases mediated have resulted in a settlement at the mediation conference.

2. Personal injury cases make up the bulk (77%) of the types of cases that have been

mediated. It appears that personal injury cases are excellent candidates for resolution through mediation. However, further investigation with a larger sample size of other types of cases is needed to better address this issue.

3. Over 60% of the attorney responses indicated that mediation was effective in

identifying realistic resolutions to their cases and helped them understand the opposing parties� position. Interestingly, 36% of the attorneys (and 57% of the parties) involved in mediated cases which settled, in whole or in part, had not been confident prior to the mediation conference that a settlement could be reached.

4. The respondents overwhelmingly believe that mediation is less costly and much

faster than traditional case processing. 5. The respondents overwhelmingly feel that the mediation process is fair and the

mediators are impartial. Significantly, this is true whether or not a settlement is

reached through mediation. 1. In terms of level of satisfaction with the process, attorneys place greater importance

than do parties on case outcome and mediation�s ability to identify realistic resolutions. Parties� level of satisfaction tends to be a product of the participatory aspect of mediation and mediator qualities. Neither plaintiffs, defendants, nor their respective counsel show greater or lesser likelihood of being satisfied with the process. Overall all participants are very satisfied with the mediation process.

2. The complexity of the case has no apparent influence on either settlement or levels

of satisfaction. 3. The length of time that the case has been in the court system has an impact on

settlement but not on levels of satisfaction. The older the case the less likely it is to settle through mediation.

4. The average duration of a mediation conference is 140 minutes (less than 2-1/2

hours), at least half of which is spent caucusing. Overall, the 17th Judicial Circuit pilot program is meeting expectations. The research shows that participants are very satisfied with the quality, pace, and cost saving aspects of mediation. It also shows that, given the opportunity, both parties and attorneys are very willing to try mediation again. The mediators are perceived to be quite fair and impartial. At the same time, the program is helping to relieve the workload of the judges. This last attribute is still on a small scale, but the potential exists for a much greater impact.

INTRODUCTION

The genesis of the 17th Judicial Circuit's mediation program can be traced back to earlier

alternative dispute resolution (ADR) legislation that was enacted approximately ten years

ago. In an attempt to reduce congestion in the courts and provide swifter justice for litigants,

the Illinois legislature enacted a court-annexed arbitration statute in 1985 and provided a

limited appropriation to start an arbitration program in 1987. The new law authorized the

Illinois Supreme Court to implement non-binding, mandatory, court-annexed arbitration

within the state trial court system.

The Illinois Supreme Court established a special arbitration study committee and

subsequently adopted rules for arbitration. In 1987, the Supreme Court Committee chose

Winnebago County as the site for a pilot program for mandatory court-annexed arbitration

of civil cases falling between small claims and the law division status. This decision was

based on various factors, including the cooperation of the local bar, the possibility of

producing meaningful statistics due to the county's size, and Chief Judge Harris H. Agnew's

willingness to spearhead the effort. The Administrative Office of the Illinois Courts worked in

conjunction with the 17th Circuit to establish the arbitration program and provide assistance

with the administrative aspects of the program. The Arbitration Program in Winnebago

County has been a success, diverting many cases from the court's docket and reducing time

to disposition in a significant percentage of cases. It has freed up the time equivalent of

one-half of a judge in a Circuit with eight judges allowing the Circuit to use that judge's time

elsewhere. The success of the arbitration program set the stage for further alternative dispute 1

resolution experimentation.

Chief Judge Agnew became Chair of the Supreme Court Committee on ADR, now the

Illinois Judicial Conference Committee on ADR. The Committee had been looking at

other methods of ADR besides arbitration as possibilities for implementing in the state

court system. In an effort to cope with burgeoning court caseloads, committee members

were interested in dispute resolution methods that quickened the pace of justice at a

reasonable cost. With the objective of disposing of filed cases in a way that is fair and

perceived to be satisfactory with less judicial resource input per case, the Committee

focused on mediation of major civil cases similar to the model used in West Palm Beach,

Florida.

The Committee started searching for a suitable county in which to conduct a pilot mediation

program. Once again, they found the 17th Circuit to be receptive. Members of the local bar

also were committed to finding better ways to accomplish the goal of prompt justice. The

Committee agreed that the willingness of the 17th Circuit to be the trial run for major civil

case mediation combined with Judge Agnew's involvement and leadership would once again

set the stage for meaningful experimentation in alternative dispute resolution techniques in

Winnebago County.

The 17th Circuit is a unified circuit consisting of Winnebago and Boone Counties, Illinois,

and is part of the Second Appellate District. The county courthouses are located in 2

Rockford and Belvidere respectively. The Circuit Court in Winnebago County is a trial

court of general jurisdiction for both criminal and civil matters. It is presided over by eight

circuit and eleven associate judges. The types of cases heard include: law under $30,000

(with mandatory arbitration), law over $30,000 (with "voluntary" mediation), chancery,

miscellaneous remedy, eminent domain, municipal corporation, mental health, small claims,

probate, dissolution, family, juvenile, felony, misdemeanor, ordinance violation, and traffic.

In February 1993, the first training of mediators occurred for the pilot program. The thirteen

mediators, dubbed the "Pilot 13", were all experienced trial attorneys or retired judges. Each

agreed to serve as a mediator for five cases without remuneration. In February 1994, an

additional nineteen mediators were trained and are beginning to serve as mediators in the

Circuit. The majority of data collected for this evaluation reflects the original "Pilot 13"

mediators' efforts. At this juncture, it is not possible to assess any change in findings

attributable to the additional nineteen new mediators. Appendix "E" however, reports

updated statistics for the pilot program that include the work of the additional mediators.

The pilot program is a voluntary endeavor. The attorneys and parties mutually agree to

participate in the mediation session. There appeared to be a general consensus among the

"Pilot 13" mediators that for the program to be successful, or at least well received, the

parties and attorneys should be allowed to have an opportunity to choose not to

participate in the mediation process.

3

The goals of the pilot mediation program include:

* Diversion of eligible cases to mediation to allow the court to process eligible

cases faster than was possible before mediation was implemented, thereby

reducing the time these eligible cases must wait for disposition, allowing the court to

process the remaining cases faster.

* Improvement or stabilization of the speed of disposition of cases not referred to

mediation.

* Reduction of case-processing costs where the mediation process results in a

settlement.

* Enhance satisfaction of litigants and lawyers with the mediation process and the

overall quality of justice.

* Save parties and attorneys effort, time, and expense in cases referred to

mediation.

The primary aim of this evaluation effort is to determine whether these anticipated

benefits have occurred without any unacceptable adverse consequences. Possible adverse

consequences of the mediation program are that the process may result in dissatisfaction

with the quality of justice delivered, that the mediation conferences may be used only as

devices for discovery, or, in essence, that the program may be ineffectual and thus add a

new layer of complexity, bureaucracy, and inconvenience to the litigation process.

4

This preliminary evaluation cannot, in and of itself, determine whether court-annexed

mediation of major civil cases should be implemented on a state-wide basis. Rather, this

report and the findings contained herein are intended to inform interested policy makers. It

endeavors to provide policy makers and other interested parties with relevant data that

would assist them in making informed policy choices.

5

MEDIATION PROCESS AND THEORETICAL ANALYSIS

The 17th Judicial Circuit mediation program is administered by the Arbitration

Administrator in conjunction with Chief Judge Agnew and the mediators. The mediation

conferences are held at the ADR Center located in Stewart Square, Rockford. It has been

reported that the ADR Center will move into the courthouse within a few years. Its present

location, while only a few blocks away from the courthouse, removes it from the formality

of the court building. It will be interesting to see if there are any changes in the perceptions

of participants when the Center relocates.

All cases filed in the law division claiming damages in excess of $30,000 are eligible to be

referred to mediation by agreement of the parties. Once a case is referred to mediation, the

parties have fourteen days to select a mediator from the list of approved mediators. Also

within fourteen days of the Order of Referral, the parties are to set a date for the mediation

session. If they are unable to agree upon a mediator within twenty-one days of the Order,

they can go back and ask the court to select one for them. All mediations are to occur

within eight weeks of the date of the Order of Referral and are to be completed within seven

weeks of the first mediation. As will be discussed later, this prompt scheduling may facilitate

settlement.

The parties' attorneys coordinate date selection with the mediator and the Arbitration

Administrator. A summary of the case must be presented by the attorneys to the mediator

ten days prior to the mediation session. The parties, attorneys, and any other interested 6

individuals who might assist in facilitating settlement in the mediation session (e.g.

lienholders, governmental officials, and insurance company representatives) must be present or

available during the mediation conference. All those present during the mediation session

sign a confidentiality agreement.

A major purpose of the pilot mediation program is to settle cases. Secondarily, it is to

assist the Committee in determining whether mediation is a plausible option for major

civil cases throughout the state. The research was designed and conducted with both

thoughts in mind.

Court-annexed mediation may serve a number of functions that may be of benefit to the

litigants and judicial system. Those subject cases referred to mediation might compel the

litigants and their respective counsel to analyze the merits of their case sooner and through

the informal, facilitative process of the mediation conference enable them to reach an

agreement to resolve the dispute either by accepting an offer made during the conference or

by serving as the basis for a post-conference settlement offer. The most obvious way in

which mediation may help reduce the duration of a case in the court system is that if most

cases referred to mediation reach an agreement at the mediation conference and if a

substantial number of these mediated agreements are reached in less time than it would

normally take to resolve them. However, an unsuccessful mediation (i.e. one that did not

result in a settlement at the session) should not be viewed too negatively. There are other

ways in which mediation can prompt earlier disposition of cases. 7

Research has shown that the vast majority of civil cases filed throughout the United Sates

are disposed of through negotiated settlement or simply wither away for lack of interest,

money, or time of the litigants. This predominance of disposition through negotiation does

not necessarily mean that settlement occurs shortly after filing the case. Witness the many

cases on the 17th Circuit's docket that have been there for many years before a settlement is

reached. It is reasonable to assume that many cases reach disposition through negotiated

settlement when counsel in the case are forced, for whatever reason, to turn their focus on

the merits of the case and assess its strengths and weaknesses as well as its net monetary

value. Trial is a rarity. This is probably due to the uneconomical nature of trial. A trial

normally results in greater expense for all involved, including the court system, than would a

negotiated settlement. Mediation may provide the motivation necessary for litigants and

their counsel to focus on the value of their case at an earlier stage.

While there exists some strong motivational factors to facilitate settlement, there are also

some potentially serious barriers. The adversarial nature of litigation and its resulting

polarized stances taken by the opposing parties coupled with certain cognitive barriers to

dispute resolution pose the most serious obstacles to settlement.

The potential beneficial functions of court-annexed mediation offer remedies to these

obstacles. A prompt time schedule for the mediation conference provides the necessary

motivation for counsel to prepare their cases and present the strengths and weaknesses to

their clients, providing them with a realistic view of their cases which may foster settlement 8

prior to the mediation. If the case is mediated, the conference itself may provide the

necessary dose of reality about one's case to initiate movement toward settlement during the

conference or shortly thereafter.

The potential effects of mediation on the expense of litigation should not be overlooked or

underestimated. Obviously trials are an expensive means to resolve a dispute. The potential

for mediation to lessen costs by prompting litigants and their counsel to examine their case

sooner should result in savings. Less substantial, but still of importance, savings may also

result if the mediation fosters settlement with less expenditure of attorney time than would

unassisted negotiation. The evaluation of the 17th Circuit program did obtain attorney

perceptions regarding the effect of mediation on matters relating to the expense of litigation

and this permits inferences to be drawn from their responses.

Mediation may have the potential to quicken the pace of settlement and lessen the monetary

burden on litigants but this in and of itself does not necessarily equate with an increase in the

quality of justice. Volumes have been written about this subjective topic. The present

evaluation takes a more practical stance on assessing the quality of justice derived from

mediation by examining the perceptions of the litigants, their counsel, and the mediators

about the fairness of the process and the outcome. Indeed, one of the strengths of this

evaluation was its ability to obtain a very good picture of the opinions of the participants in

mediation.

9

METHODOLOGY

The primary data sample for this study consists of all of the 17th Circuit's mediated cases

from March 1993 through May 1994. The research includes survey data collection on

participants in mediation. The survey data collection focuses on a written questionnaire

completed by the participants augmented by a series of face-to-face or telephone interviews.

The research also includes archival data collection from the records of the 17th Circuit.

Appropriate statistical testing of findings have been done.

The data is used to evaluate and offer a composite picture of the effectiveness of the pilot

program. The empirical issues relating to program effectiveness can be divided into the

following categories:

1. QUALITY

* Participants' satisfaction with the process * Perceptions of justice and fairness 2. PACE * Rates of settlements * Effects of case type and complexity * Impact on case processing 3. COSTS * Legal costs to the parties 4. MEDIATOR STYLES * Impact of differing mediator strategies * Effect of caucusing * Application to future training

10

These empirical issues represent much of the research on mediation. As such, they reflect

the wide range of uses of mediation in dispute resolution. Some of these uses include such

diverse topics as family mediation, neighborhood justice centers, and environmental and

public policy development. One of the underlying assumptions of this research is that major

civil case mediation functions differently than these other uses for mediation. For

example, many researchers focusing on neighborhood justice centers have correlated

effectiveness with mediation's ability to preserve the ongoing relationship of the

disputants. Many of the cases expected in this pilot program will be personal injury cases

where an ongoing relationship is not assumed to have a significant impact on the success of

the mediation. Another example would be the concern for power imbalances between the

disputants. This concern stems from the use of mediation in divorce and other family law

matters as well as in environmental policy matters. It is assumed that power imbalances

will be no different among the mediated cases in this pilot program than in traditional

litigation due to the presence of counsel. Indeed, in only two mediated cases were one of

the parties not represented by counsel -- neither of these cases settled during the mediation

conference. In interviews with mediators involved in this program, it was mentioned that

unrepresented parties may bring with them a set a cognitive biases against settlement --

particularly from a distrust of attorneys and the legal system (the mediators are attorneys or

retired judges).

The findings for each of these empirical issues allow us to determine the program's

11

strengths and weaknesses. It should be noted that the program is a pilot attempt to mediate

major civil cases. As such, due to sample size constraints and the ongoing implementation

of the program, the findings may not allow for as rigorous an analysis as may be wished.

However, the findings should provide a useful measure of the program's effectiveness and

hopefully assist the 17th Circuit in the continuing administration of the program.

Research activities initially focused on the development and distribution of valid written

questionnaires. The questionnaires were developed after an extensive review of the

literature dealing with mediation. Also, a review of other evaluation studies was

conducted to help illuminate problems and inadequacies as well as the strengths of these

other studies. This review will be drawn upon again when examining the results of this

study in light of these other efforts.

The distribution of written questionnaires for the mediated cases began shortly after the

program's implementation. The questionnaires are given to participants at the

Arbitration/Mediation Center at the conclusion of the mediation conference in a sealed

envelope and they were asked to complete and return the questionnaire to the NIU College

of Law with the return addressed, stamped envelope provided.

The primary concern, at this juncture, is to get some indication of whether or not the pilot

program is effective in terms of number of cases mediated, the types of cases, and the

settlement rates. More specifically, how do the participants in mediation perceive the 12

process in terms of quality, pace, cost, and mediator style? Indications thus far

demonstrate that the program is well received. Similar to what much of the literature

states, mediation is perceived to be cheaper and faster while still providing justice.

13

RESULTS OF THE EVALUATION

SETTLEMENT RATES-CASE TYPE

Thus far, 107 cases have been mediated, with 51 of those cases reaching a settlement or

partial settlement at the mediation conference for an overall settlement rate of 44%. As can be

seen from examining Table 1, the majority of cases that have been mediated are personal

injury - auto type cases (58%). The type of cases with the highest settlement rate (57%) is

personal injury - other (a catch-all category of non-auto related personal injury cases).

Contract related cases appear to be somewhat more difficult to settle through mediation.

However, with only 12% of the cases mediated of a contract nature, the apparent difficulty

may simply be a function of the small sample size. The other categories of case types have

too small of a sample size to accurately analyze their potential for mediated settlement.

TABLE 1 SETTLEMENT RATE BY CASE TYPE

CASE TYPE TOTAL Settlement Rate Contract 13 30%

Wrongful death 4 25%

Product Liability 3 33%

Personal Injury-auto 62 49%

Personal Injury-other 21 57%

Foreclosure-Mechanics Lien 3 00%

Other 1 00%

TOTAL 107 44.00%

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SETTLEMENT RATES - AGE OF CASE

Settlement rate can be a function of many things. In Table 1, it appears that personal injury

cases are more amenable to settlement through mediation than other types of cases. Other

factors can have an impact on settlement. The length of time the case has been in the court

system may have an effect on settlement rates. Table 2 depicts settlement rate by the year the

case was filed. There is a slight association between the year the case was filed and settlement

rate. The older the case the less likely it is to reach a mediated settlement. This may be a

product of the time and money invested in the older cases. There was no association between

case type and year filed for the mediated cases, which rules out the possible explanation that

the older cases were types with lower settlement rates.

TABLE 2 SETTLEMENT RATE BY YEAR CASE FILED

YEAR CASE FILED TOTAL SETTLEMENT 1987 2 50.00%

1988 4 25.00%

1989 5 40.00%

1990 16 50.00%

1991 32 31.00%

1992 28 50.00%

1993 20 74.00%

TOTAL 107 44.00%

15

SETTLEMENT RATES - OTHER FACTORS

Many other possible case attributes may affect settlement rate, these include who the mediator

was, who the referring judge was, and, perhaps, even the time of day the case was mediated.

As to the last point, one would be hard pressed to theorize why time of day would have an

impact. Luckily, no statistical difference exists between morning or afternoon mediation

conferences. The more likely attributes would be the mediator and the referring judge for the

particular cases. The referring judge is the initial starting point for mediation cases. They are

the gatekeepers for the program. The judges' suggestion of mediation to particular

participants and not others, perhaps based upon some objective criteria, allows for certain

cases to be "volunteered" for mediation. Table 3 summarizes settlement rate by referring

judge. As can be gleaned from this data, there exists some association between judge and

future mediated settlement potential. Though Judge "A" has the highest associated settlement

rate, the differences are not statistically strong enough to suggest that the criteria which Judge

"A" uses to persuade parties toward mediation or order parties toward mediation is any

different or more successful than the other judges.

TABLE 3 SETTLEMENT RATE BY REFERRING JUDGE

REFERRING JUDGE

TOTAL CASE SETTLEMENT RATE

A 69 44.00%

B 23 59.00%

C 11 44.00%

D 4 00.00%

TOTALS 107 44.00%

16

It is very likely that the mediator plays a very important role in the potential for a settlement.

Indeed, certain mediators are proving to be more successful at achieving settlements than

others. As can be seen in Table 4, four mediators have been involved in more than ten cases

with somewhat mixed results. Caution should be taken when examining mediator results with

such small sample sizes. However, it would appear that three of the mediators with the most

experience (i.e. number of cases mediated) have a greater than average likelihood of getting

the case to settle.

17

TABLE 4 SETTLEMENT RATE BY MEDIATOR

MEDIATOR TOTAL CASES SETTLEMENT RATE

"A" 14 50.00%

"B" 13 85.00%

"C" 12 67.00%

"D" 11 36.00%

"E" 9 33.00%

"F" 8 50.00%

"G" 6 33.00%

"H" 5 20.00%

"I" 4 50.00%

"J" 4 50.00%

"K" 4 25.00%

"L" 3 67.00%

"M" 2 50.00%

"N" 2 00.00%

"O" 1 100.00%

"P" 1 100.00%

"Q" 1 100.00%

"R" 1 00.00%

"S" 1 00.00%

"T" 1 00.00%

"U" 1 00.00%

"V" 1 00.00%

"W" 1 00.00%

"X" 1 00.00%

TOTALS 107 44.00%

18

A tentative conclusion at this stage of the research suggests that three factors -- the type

of case, the year it was filed, and who the mediator was -- have the greatest impact on

outcome of mediated cases. From a logical standpoint, certain cases may be more

amenable to mediated settlements than others, certain mediators may be more adept at

achieving settlement than others (see Appendix "B" for a review of mediator styles and

tactics), and cases that have been in the court system for a shorter period of time may not have

parties so entrenched in their position as to preclude settlement. However, this last point

about parties and their counsel becoming entrenched does not seem to function in relation to

the amount of discovery completed and settlement. There appears to be no association

between the amount of discovery and settlement. That is, the amount of discovery completed

does not appear to effect settlement rate. This may have important ramifications for case

processing. If the amount of discovery does not impact settlement rate, it would appear

prudent and frugal to refer cases to mediation as soon as possible after filing, which is what

the data on case year demonstrated. Obviously, a certain amount of time is needed to

adequately assess the case and determine its merit. These findings gain anecdotal support

from interviews conducted with attorneys involved in mediated cases. As one attorney stated,

it "doesn't seem to matter if discovery is almost complete or just starting as long as both sides

have been able to evaluate [the] case properly."

The average length of a mediation conference is 140 minutes (two hours, twenty minutes).

The overall range is from 50 to 260 minutes for each conference. There is no statistical

association between conference length and settlement rate. For over 83% of the conferences, 19

caucusing represents at least 50% of the conference session, with 41% of the conferences

caucusing for over 75% of the session. As was the case with length of conference, no

association exists between amount of caucusing and settlement rate.

POST-MEDIATION EFFECTS ON NON-SETTLED CASES

Though settlement rate is one important objective indicator of a program's success, it is

important to note that a successful mediation conference does not necessarily mean that

settlement occurred at the conference. The mediation conference may have set the stage for

future negotiations where an agreement is reached.

This study is attempting to ascertain how effective the program is at settling cases after a

mediation conference occurred where no agreement was reached. Two approaches are

possible to determine this effectiveness. First, participants can be asked to rate how well the

"mediation conference improved the chances that this case will be settled prior to trial?" This

can be termed post-mediation expectations. The second approach requires tracking of the

cases through the archival computerized records of the circuit. The latter approach is made

somewhat difficult by the lack of promptness by which the circuit updates its case data

coupled with the lag time of filing the necessary documents by attorneys. Participants'

post-mediation expectation responses show that 43% of the attorneys, 26% of the parties, and

53% of the mediators suspect that the conference will improve the likelihood for pre-trial

settlement. These responses are interesting, given the findings of research showing that

approximately 90% of filed cases never reach trial. The data may be skewed by the subjective 20

nature of questionnaires. The parties may have an unrealistic appraisal of the worth of their

case, which may account for their low rating of post-mediation settlement. It could also be

that they simply desire "their day in court." Further, in interviews conducted with both

mediators and attorneys who have been involved in mediated cases that did not reach

settlement at the session, it was repeatedly mentioned that failure to reach settlement was as

one mediator stated, an "honest disagreement over the value of the case." When there exists

significant differences in case value, no amount of mediation may be able to move the parties

from their position. In these cases the traditional adversarial process appears to be necessary.

OVERCONFIDENCE AS A BARRIER TO SETTLEMENT

One's level of confidence in their case certainly should have an impact on settlement

negotiations. Much has recently been written on the effect of overconfidence as a barrier to

resolving disputes. Inferences can be drawn from the questionnaires that suggest

overconfidence does play a negative role in settling cases. When asked if they "will fare

better if this case goes to trial" parties and attorneys agreed 55% and 48% respectively. Of

course, this could be a product of either excessively low or high demands by the opposing

party. However, in interviews with the mediators it was stressed that many of the mediations

that did not result in a settlement were a product of an inability of one or more of the

participants to properly assess the value of their case.

21

PERCEPTIONS OF QUALITY, PACE, AND COST

Perceptions of the participants play an important role in evaluating the program. In the case

of post-mediation impact on settlement, those perceptions may not be as accurate as archival

data. However, the measurement of the subjective aspects of mediation are best analyzed

through examining the perceptions of the participants. Questions and issues surrounding the

satisfaction, fairness, and assessments of the overall process as well as perceptions of cost

savings and pace of negotiations are best measured with attitudinal surveys.

PACE

When asked to compare the pace of settlement through mediation with the pace of settlement

through the standard litigation process, all respondents overwhelmingly felt that mediation

was much quicker. Indeed, 95% of the attorneys and 98% of the parties agreed that mediation

was a faster route to settlement. The important finding here is that attorneys believed

mediation to be quicker. Attorneys should have a much better understanding of pace than do

parties because they, obviously, have much more experience with the standard litigation

process. It should be noted that many of the parties (approximately 60%) to the mediated

cases were representatives of insurance companies. These individuals are assumed to be

repeat players in the court system and as such should have some knowledge of the pace of

justice in the traditional litigation process.

22

COST

Parties were asked if they felt "mediation was less costly than had a settlement been

reached through litigation." Not one party respondent felt that mediation was more costly.

The cost savings aspect of mediation was examined a little differently for attorney

responses. Attorneys were asked to estimate the attorney fees and all other legal cost

(excluding settlement amounts) that their client would incur for the mediated case and also

these same costs had the case been settled by litigation. The modal and mean average cost

of mediated settlements was between a range of $5,000 and $9,999, while the modal and

mean average cost of the same cases had it been settled through litigation was between

$10,000 and $24,999. It would appear that the parties' perceptions of cost savings is accurate

based upon the attorney responses, a substantial savings results through mediated

settlements. An important and substantial savings in attorney costs is associated with

mediation.

QUALITY - PARTICIPANT SATISFACTION

Apparently mediation is a quick and relatively inexpensive means to resolve major civil case

disputes. However, parties to a dispute are seeking a fair and just resolution not just a quick

fix. The measurements of participant perceptions of the process both in overall satisfaction

and specifically the fairness of the process are the most important elements of a successful

program. Tables 5, 6, and 7 review the overall satisfaction of participants in the mediation

process. Overall satisfaction was measured in four ways. First, respondents were asked if

they were "satisfied with the mediation process." The results show that mediators and parties 23

are more satisfied than attorneys are with the process. However, overall respondents showed

high levels of general satisfaction. The lower level of general satisfaction among attorneys

was found to be highly correlated with outcome (higher levels of satisfaction were correlated

with mediations that resulted in settlement). This same condition was not apparent among the

parties nor the mediators. Attorneys may be more results-oriented than parties and mediators.

It should also be noted that there existed no statistical difference between plaintiffs and

defendants and their respective counsel regarding general satisfaction, nor did the type of case

have an impact on general satisfaction.

TABLE 5 GENERAL SATISFACTION WITH PROCESS

PARTICIPANT TYPE

SATISFIED WITH MEDIATION PROCESS

WILLING TO TRY MEDIATION AGAIN

Party 81.00% 73.00%

Attorney 65.00% 87.00%

Mediator 97.00% (not asked)

Another measure of satisfaction is the likelihood that individuals would want to try the

mediation again. As shown in Table 5, attorneys were more likely than parties to want to try

mediation again. Parties' lower showing here may be a product of their overall desire not to

be involved in a major civil case in the future. When cross-tabulated by occupation, the party

results show that those occupations with the higher likelihood of past or future court

experiences (e.g. claims representatives of insurance companies) are more likely to want to try

mediation again than the one-timers.

24

Of the cases that reached settlement through mediation, satisfaction with the agreement

becomes an important component of overall satisfaction. Table 6 summarizes respondent's

satisfaction with the agreement that was reached. Generally, parties were a little more

satisfied with the agreement than attorneys. It is unclear why this difference exists. This is

especially true when examining the "unsure" response category. Attorneys are far more likely

to be unsure if they are satisfied with the agreement reached. Yet, these should be the

individuals with the knowledge and experience to compare these outcomes with the

traditional process outcomes. Proponents of mediation strongly suggest that mediation is a

win-win situation. To test this notion, parties were asked if they felt they were the "loser in

the case" and attorneys were asked if "their client was the loser in the case." Table 7 shows

that only 8% of the attorneys felt their client was the "loser" and 2% of the parties felt they

were the "loser" in the case. It is interesting to note that although the vast majority of the

parties were satisfied with the agreement reached, 31% of them were not sure if they were the

winner or loser in the case. This may reflect the informal, non-adversarial process of

mediation where winning or losing is replaced or muted by the desire to resolve the dispute in

a cooperative fashion.

The notion of a cooperative atmosphere during mediation was mentioned quite often during

interviews. This is especially true when participants were asked to compare mediation with

pre-trial settlement negotiation. Pretrial conferences in the presence of a judge tend to be

viewed negatively by the interviewees. They depict pretrial conferences as rushed and

fostering bitterness (albeit unwarranted) in the minds of the participants involved in them. 25

Another factor mentioned that separates pre-trial conferences from mediation conferences is

what can be termed the confidentiality factor. As one mediator stated, "In pretrial conferences

everybody hears it and you're going to be very guarded as to what you say." The trust accrued

to the mediator when discussing confidential matters in caucus provides for a "different

dynamic than other settings." One that is "much more effective and probably has a better

likelihood of [achieving] some kind of settlement."

TABLE 6 SATISFACTION WITH SETTLEMENT

PARTICIPANT

SATISFIED WITH SETTLEMENT

REACHED

NOT SURE IF SATISFIED

Party

90.00% 8.00%

Attorney 79.00% 15.00% TABLE 7 WAS THERE A "LOSER" IN THE CASE?

PARTICIPANT THEY OR THEIR CLIENT WERE NOT THE LOSER

THEY WERE NOT SURE

Party 67.00% 31.00%

Attorney 74.00% 19.00%

Overall satisfaction with the process is quite high. Individuals stated that they would

likely want to try mediation again regardless if a settlement had been reached or not. Of those

cases where a settlement was reached, respondents were very satisfied with the agreement and

only a very few felt they were the loser in the situation.

26

QUALITY - PERCEPTIONS OF JUSTICE AND FAIRNESS

The quality of mediation has at its foundation perceptions of justice and fairness. These

perceptions deal with the procedural, corrective, and comparative aspects of mediated justice.

Participants were asked to respond to these different aspects of justice. A general question

was asked to all participants dealing with the procedural aspects of mediation. Table 8 shows

that the overwhelming majority of participants felt that the process was fair. Not one party

and only 3% of the attorneys felt that the process was not fair, 9% of the attorneys and 16% of

the parties were not sure. With an obvious vested interest in the answer, mediators were

almost unanimous in the feeling that the process was fair.

TABLE 8 PROCEDURAL FAIRNESS

PARTICIPANT PROCESS WAS FAIR

NOT SURE

Party 85.00% 15.00%

Attorney 88.00% 9.00%

Mediator 98.00% 2.00%

If the case settled through mediation, other aspects of justice and fairness can be

examined. First, as perceived by the participants, how fair was the settlement? Justice

also has a corrective aspect. Was a wrong corrected? Further, if we compare perceptions

of justice of mediated settlements with perceptions of justice had the case been litigated,

would similar settlements have occurred? The responses to these questions are summarized in

Tables 9, 10, and 11. A vast majority of the respondents felt that the agreement reached was

27

fair (Table 9). Most of the respondents felt that "the issue that initiated this case has been

corrected with this settlement" (Table 10). When comparing the results of the mediated

settlement with the possible results had the case been litigated, the findings are less conclusive

(Table 11). A majority of mediators felt that comparative results would have occurred. For

the most part, parties and attorneys are less sure of how comparable are the results.

Comparability may be difficult, since most of these were personal injury cases where the

expected results, especially in a jury trial are akin to "a roll of the dice." This is certainly true

for some parties who do not have the experience to accurately determine if the results are

similar.

TABLE 9 PERCEIVED FAIRNESS OF SETTLEMENT

PARTICIPANT OUTCOME WAS FAIR

NOT SURE

Party 77.00% 19.00%

Attorney 83.00% 13.00%

Mediator 97.00% 3.00% TABLE 10 CORRECTIVE ASPECTS OF SETTLEMENT

PARTICIPANT TYPE

ISSUE INITIATING THE CASE HAS BEEN

CORRECTED

NOT SURE

Party 62.00% 31.00%

Attorney 61.00% 17.00%

28

TABLE 11 COMPARATIVE ASPECTS OF SETTLEMENT

PARTICIPANT TYPE

LITIGATION WOULD HAVE HAD SAME RESULTS

NOT SURE

Party 35.00% 63.00%

Attorney 50.00% 25.00%

Mediator 72.00% 25.00% QUALITY - PERCEPTION ABOUT THE MEDIATORS Last, but certainly not least, perceptions of the quality of the mediation conference may

depend a great deal on the mediator. How impartial and fair a mediator appears, how

interested in settling the case a mediator appears, and how encouraging a mediator appears

are all important questions in evaluating the quality of the mediation experience.

Overwhelmingly, both parties and attorneys agreed that the mediator was impartial and fair,

93% and 93% respectively. Similarly, both parties and attorneys agreed that the mediator

appeared genuinely interested in the settlement of the case, 92% and 94% respectively.

How encouraging a mediator should be in getting parties to settle and how hard should a

mediator push parties to settle poses an interesting problem. The literature on mediation

suggests that mediators are merely facilitators, not instigators. According to this line of

thought, mediators should not push parties toward settlement. The primary concern is that

parties will feel coerced and lose their control over the situation. The findings thus far

suggest that this is not relevant to major civil case mediation. First, major civil case

mediation differs from other forms of mediation due to the presence of counsel at the

29

mediation conference. Indeed, in only two instances to date in the pilot program have parties

represented themselves at mediation (neither of which resulted in a settlement). Second,

21% of the attorneys felt that the mediator did not push hard enough for settlement and 12%

felt that the mediator did not encourage the parties to reach settlement. Though this is highly

correlated with outcome (attorneys are more likely to feel this way if a settlement did not

occur), it is difficult to determine if this is a product of mediator style or simply the attorney's

blaming the mediator wrongly for lack of settlement. Third, while only 7% of the parties felt

the mediator did not push hard enough, 14% felt that the mediator did not encourage

settlement. At the same time, the vast majority of the parties responded that they felt they

were in control (71%) and actively participated (82%) in the attempted mediated resolution of

the dispute. This means a majority of the parties felt the mediator did push hard for

settlement yet this did not affect the parties' perceptions of control. Indeed, 81% of the

parties did not feel coerced to accept a settlement offered to them. It would appear that a

more encouraging mediator, one that pushes parties toward settlement, would be accepted by

the parties because they would still retain control and actively participate.

A mediator who pushes hard for settlement would probably be accepted by attorneys. A

theme throughout the interviews with attorneys who have participated in mediated cases is that

the "mediators did not take an active enough role." On at least two occasions, interviewees

went so far as to suggest that "mediators need to be more aggressive, mediator[s] who do that

are more effective." Attorneys stressed that the mediators need to be more "proactive" and

"not just passively shuttle figures back and forth." Attorneys feel that the best mediators are the 30

ones who force both sides to question their own perception of the case and change their positions

as a result. One attorney was especially disgruntled that early on in the conference the mediator

stated in joint session that the parties were too far apart and they would not be able to settle. The

attorney felt that this thwarted any further communication during the conference.

It was also pointed out in the interview process that the reason mediators are not as proactive and

assertive as attorneys and, perhaps, parties would like is due to the training they initially received.

As observers at the initial training, the researchers are aware that the mediators had stressed to

them the importance of being a facilitator. This may have been construed to mean that they

should assume a passive role. This type of reactive or passive mediator style is also prevalent

in the academic as well as practitioner literature.

It appears that participants in a mediation would appreciate a more active role for the

mediator. This role would be "more effective to help parties accurately assess the 'trialability' of

the case, how it will play to a jury, etc." Being agents of reality and communicating that to

both sides seems to be the desire of a majority of the participants in this evaluation.

The concept of mediation as a communication tool was evident throughout the interviews.

Communication was seen as the product of a cooperative forum where negotiation could

informally occur. Discussions that would normally not occur in unassisted negotiation or in

pretrial conference occur in mediation because of the confidential nature of the procedure. As

one attorney put it, "attorneys are normally very frank with the mediator, it is a way to filter 31

through to the other side tidbits of information that you want them to know so they can

persuade their client to either increase their offer or lower their demand." At other times, an

attorney will ask the mediator not to tell the other side certain information.

MEDIATION AS A DISCOVERY TOOL

One of the fears about this type of mediation is that attorneys will use the mediation

conference as a discovery vehicle. Respondents overwhelmingly felt that the conference was

not being manipulated in this manner. Only 7% of the attorney respondents felt that this was

occurring, while only 2% of the mediators had this same feeling. The professionalism and

integrity of the local bar is reflected in these responses. Also, the local bar's legal ability is

reflected in the perceptions of the parties. Parties stated that their attorney adequately

represented them in 95% of the responses. Further, mediators responded that in 80% of the

cases, attorneys tended to be of even quality and ability. In follow-up interviews with the

mediators, it was stated that they felt that in some instances one side has greater expertise than

the other but that it did not have a negative impact on the process. The mediators felt that the

cooperative nature of the process dilutes the effect of one side being of greater talent than the

other. The biggest stumbling block that unequal caliber played in the process was if an

attorney was ill-prepared or lacked the knowledge to fully assess the value of his case.

ROCKFORD'S "VOLUNTARY" PROGRAM

Another fear about the program seems to be a bit more well-founded. The program is

intended to be either voluntary or judge ordered. In many instances it would appear that 32

neither the attorney nor the party desired the case ordered to mediation. In the open ended

questions in the party questionnaire and in interviews with attorneys it has been repeatedly

stated that they were, in essence, ordered to mediation by the judge or as one party put it:

"strongly suggested to try mediation by the judge." However, this is only slightly reflected in

the answers given by respondents to the written questionnaire. Interviews with the mediators

also reflect this somewhat mandatory aspect of what is, perhaps incorrectly, assumed by the

local bar to be a voluntary program. Mediators are troubled with this because they feel they

are getting some cases that cannot be resolved through mediation. Mediators feel that the

judges need to act more as gatekeepers to the program and screen cases for their

appropriateness and ripeness for mediation.

FINDINGS - CONCLUSION

At this point in the research, three conclusions can be drawn from the data. First, settlement

seems to be a function of case type, year case filed, and mediator. Recently filed personal

injury cases appear to be the most prone to possible settlement through mediation. The

function of the mediator needs to be further explored. Some mediators are proving

themselves more successful at reaching settlement than others. However, the role of

mediation and the mediator on post-conference settlement still needs to be explored. It was

thought early on in the research that the threat, if you will, of mediation would help induce

parties to reach agreement prior to the mediation. This has proven not to be the case. To date,

only four cases settled prior to the mediation session. The post-mediation effect is the one

that offers the most promise at this point. 33

Second, rates of satisfaction are generally consistent between parties and attorneys.

Interestingly, the reasons for satisfaction differ. Attorney satisfaction is best explained by a

combination of perceptions of procedural fairness, outcome, and the reality check function

that mediation serves. Attorneys seem to be outcome and process oriented individuals. They

view the process of mediation as fair and appreciate its ability to foster realistic resolutions to

disputes. On the other hand, party satisfaction seems to stem from perceptions of the

mediator's interest in the resolution of the case and the mediator's impartiality coupled with a

sense that they were not forced to reach a settlement at the conference. However, the reality

check function of mediation is appreciated by parties as well, which is mostly a product of the

number of insurance company representatives in the sample. The obvious difference between

parties and attorneys here is that parties do not seem to be as outcome oriented as attorneys as

it pertains to being satisfied with the process. Parties seem to be merely satisfied with having

an informal, non-binding forum in which to express their side of the case. That outcome is

not associated with satisfaction is consistent with some of the recent research on party

satisfaction with court-annexed arbitration (see e.g. Lind and Tyler, The Social Psychology of

Procedural Justice).

Third, the literature on mediation strongly suggests that successful mediations are most likely to

occur when the parties have an ongoing relationship, either personal or business. As can be

seen from the data in this study, the majority of cases tended to be of personal injury-auto type

nature. It was assumed at the outset that the ongoing relationship element would be missing

from this program. However, this has not entirely been the case. In 50% of the responses, 34

parties stated that they knew the opposing party prior to the case. When correlated to examine

these effects on outcome and satisfaction, it was found that there was no association between

knowing the opposing party prior to mediation and levels of satisfaction with the process or

outcome. This finding apparently seems to contradict the mediation literature.

It should be noted that the case summaries provided to the mediators before the session

proved very useful. The most often voiced complaint from mediators was not on the

summary's quality but its timeliness. By local rule, the summary should be delivered to the

mediator no more than ten days before the session is to occur. A second complaint was

length. It appears that mediators prefer a concise statement rather than a lengthy brief.

35

CONCLUSION

These findings suggest that mediation is cheaper, faster, and equitable. These same

conclusions have been drawn by other researchers examining civil case mediation. A recent

study of Florida's 13th Judicial Circuit shows very similar results to the ones thus far

expressed in this study. The major difference is that, in the circuit in Florida, contract cases

were the most amenable to a mediated settlement and personal injury cases the least likely to

settle through mediation. The findings contained herein are exactly the opposite. A possible

explanation for this difference may be the mediator's qualifications. The mediators for the

17th Circuit's program are, for the most part, practicing attorneys, who have various areas of

specialization. This may allow them greater levels of substantive knowledge about one case

type as compared to another. Whether this expertise may help foster settlement, deserves

future examination because it has ramifications on who should be mediators of major civil

cases in general and who should be the possible mediators in any one specific case.

Overall, it appears that the 17th Circuit's Pilot Mediation Program is meeting the needs of

the area's legal community and its residents. It is providing an alternative to traditional

litigation while demonstrating the viability of mediation. The initial success of

mediation coupled with the ongoing arbitration program in the circuit demonstrates that the

17th Circuit continues to be at the forefront of the ADR movement in Illinois.

36

APPENDIX �A� QUESTIONNAIRES

Questionnaires for the participants in the mediation sessions were developed after are view of the

academic and practitioner literature dealing with ADR. Questionnaires were developed for each

category of participant; mediator, attorney, and party. These written questionnaires were

distributed to the participants at the conclusion of the mediation session in sealed envelopes

containing the questionnaire, a cover sheet, and a stamped envelope. Participants were asked to

return the questionnaires to the Northern Illinois University College of Law

The party questionnaire included open-ended questions to provide these participants with the

opportunity to express the opinions beyond what was contained in the closed-ended questions.

The mediator and attorney questionnaires did not contain this feature because follow-up face-to-

face interviews were conducted with a sample of these individuals. This decision was made to

keep the attorney and mediator questionnaires as brief as possible in the hopes that it would

increase response rate. Face-to-face interviews were decided to be too much of an intrusion into

the personal lives of the parties.

Contained in this appendix are copies of the questionnaires used for each category of participant

and the results of the questions in summary format. The actual questionnaires are on file with the

researcher.

PILOT MEDIATION PROGRAM 17th CIRCUIT COURT

CONFIDENTIAL ATTORNEY QUESTIONNAIRE WITH FREQUENCY DISTRIBUTIONS

SECTION I. QUESTIONS All attorney respondents were asked to indicate if they strongly agreed, agreed, neither agree nor disagree, disagree, strongly disagree to fifteen statements that were intended to ascertain their general reaction to the mediation process. The sample size was 124 respondents. Responses are given in percentages and may total higher than 100% due to rounding. QUESTION 1 "The mediator appeared to be genuinely interested in the settlement of the case" (Intent: Assessment of the mediator)

Strongly Agree 58% Agree 36% Neither Agree nor Disagree 5% Disagree 1% Strongly Disagree 0%

QUESTION 2 "The mediation process was effective in identifying realistic resolutions to this case" (Intent: Mediation as a 'reality check' for participant)


QUESTION 3 "The mediator did not encourage the parties to reach a settlement" (Intent: Assessment of the mediator)


QIJESTION 4 "The mediation process was ineffective in helping you understand the opposing party's position" (Intent: Mediation as a 'reality check' for participant)


QUESTION 5 "Mediation was inappropriate for this type of case" (Intent: Process Appropriateness)


QUESTION 6 "The mediator was impartial and fair" (Intent: Assessment of mediator)


QUESTION 7 "Opposing counsel appeared to be using the mediation conference as a discovery vehicle" (Intent: Process Appropriateness)


QUESTION 8 "You felt pressured to mediate this case" (Intent: Coercion to mediate)


QUESTION 9 "The legal issues in this case were complex" (Intent: Complexity of matters of law in this case)


QUESTION 10 "You feel that you were in control of the attempted resolution of this case" (Intent: Process control)


QUESTION 11 "You are satisfied with the mediation process" (Intent: Process satisfaction)


QUESTION 12 "The mediator did not push hard enough for settlement" (Intent: Assessment of the mediator)


QUESTION 13 "The mediation process was fair" (Intent: Process satisfaction)


QUESTION 14 "You expect an ongoing business relationship with your client" (Intent: Stability of relationship with client)


QUESTION 15 �It is not likely that you will want to try mediation again" (Intent: Process satisfaction)


SECTION II. All attorney respondents were asked to provide general information about their backgrounds. Sample size was 124 respondents. QUESTION 16 "Which party did you represent in this case?"

Plaintiff 47% Defendant 51% Other 2%

QUESTION 17 "How would you describe your law practice?"

Individual Practice 10% Firm 2-10 Attorneys 47% Firm 10+ Attorneys 42% Corporate Counsel 1% Other 1%

QUESTION 18 "Approximately how many prior mediated cases have you been involved in?"

This was first 36% 1-4 47% 5-8 10% 9 or more 14%

QUESTION 19 "What is your gender?"

Male 90% Female 9% No response 1%

QUESTION 20 "What year were you born?"

Average Year 1951 Modal Year 1953

QUESTION 21 "In what year did you begin practicing law?"

Average Year 1979 Modal Year 1973

QUESTION 22 "How would you categorize your practice?"

No litigation 1% Some litigation, <25% 7% 25% to 50% litigation 10% >50% litigation 82%

QUESTION 23 "What was the status of discovery at the time of the mediation conference?"

Not begun 2% Begun, but not completed 36% Essentially complete 46% Completed 16%

QUESTION 24 "Have you been involved in an arbitrated case in this Circuit?"

Yes 86% No 14%

QUESTION 25 "Did a settlement result at the mediation conference?"

Yes 40% No 57% Partially 3%

SECTION III. Attorneys were asked to respond to this section only if a settlement was reached or partially reached at the mediation conference. Sample size was 54 respondents. QUESTION 26 "You are satisfied with the settlement that was reached" (Intent: Outcome satisfaction)


QUESTION 27 "If this case had been litigated, you believe it would have resulted in approximately the same outcome" (Intent: Outcome satisfaction)


QUESTION 28 "You think the mediation process was a quicker alternative to litigation for this case" (Intent: Perceptions of pace)


QUESTION 29 "Prior to the mediation conference, you were not confident that a mediated settlement could be reached" (Intent: Pre-mediation expectations)


QUESTION 30 "You think the outcome of this dispute was fair" (Intent: Outcome fairness)


QUESTION 31 "You think the parries will comply with the settlement that was reached"(Intent: Perception of compliance)


QUESTION 32 "You feel that your client was the loser in this case" (Intent: Outcome satisfaction)


QUESTION 33 "You feel that the issue that initiated this case has been corrected with this settlement"


QUESTION 34 "Please estimate the attorney fees and all other legal costs (excluding monetary settlement amounts) that your client will incur for this case"

Under $1,000 2% $1,000 to 2,499 9% $2,500 to 4,999 21% $5,000 to 9,999 38% $10,000 to 24,999 23% $25,000 to 49,999 4% >$50,000 4%

QUESTION 35 �Please estimate the attorney fees and all other legal costs (excluding monetary

settlement amount of that your client would have incurred had this case been settled by litigation"


SECTION IV. Attorneys were asked to respond to this section only if a settlement was not reached during the mediation conference. Sample size was 70 respondents. QUESTION 36 "The mediation conference improved the chances that this case will settle prior to trial" (Intent: Post-mediation expectations)


QUESTION 37 "You are confident that your client will fare better if this case goes to trial" (Intent: Overconfidence as a cognitive barrier to resolution)


QUESTION 38 "Prior to the mediation conference, you were confident that a mediated settlement could be reached" (Intent: Pre-mediation expectations)


QUESTION 39 "Please estimate the attorney fees and all other legal costs (excluding any monetary settlement amounts) that your client will incur for this case if it settles prior to trial"


OUESTION 40 "Please estimate the attorney fees and all other legal costs (excluding any monetary settlement amounts) that your client will incur of this case goes to trial"


PILOT MEDIATION PROGRAM17th CIRCUIT COURT CONFIDENTIAL PARTY QUESTIONNAIRE

WITH FREQUENCY DISTIUBUTIONS SECTION I. QUESTIONS All party respondents were asked to indicate if they strongly agreed, agreed, neither agree nor disagree, disagree, strongly disagree to fifteen statements that were intended to ascertain their general reaction to the mediation process. The sample size was 96 respondents. Responses are given in percentages and may total higher than 100% due to rounding. QUESTION 1 "The mediator appeared to be genuinely interested in the settlement of the case" (Intent: Assessment of the mediator)


QUESTION 2 "The mediation process was effective in identifying realistic resolutions to this case" (Intent: Mediation as a 'reality check' for participant)


QUESTION 3 "The mediator did not encourage the parties to reach a settlement" (Intent: Assessment of the mediator)


QUESTION 4 "The mediation process was ineffective in helping you understand the opposing party's position" (Intent: Mediation as a 'reality check' for participant)


QUESTION 5 "You felt forced to accept the settlement offered by the opposing party"(Intent: Process Appropriateness)


QUESTION 6 "The mediator was impartial and fair" (Intent: Assessment of mediator)


QUESTION 7 "You feel that you did not actively participate in the attempted resolution of this case" (Intent: Process Appropriateness)


QUESTION 8 "You expect to have future dealings with the opposing party(ies)" (Intent: Relationship with opposing party)


QUESTION 9 "You feel that your attorney adequately represented you" (Intent: Assessment of attorney)


QUESTION 10 "You feel that you were in control of the attempted resolution of this case" (Intent: Process control)




QUESTION 12 "The mediator did not push hard enough for settlement" (Intent: Assessment of the mediator)


QUESTION 13 "The mediation process was fair" (Intent: Process satisfaction)


QUESTION 14 "You knew the opposing party prior to this case" (Intent: Relationship with opposing party)


QUESTION 15 �It is not likely that you will want to try mediation again" (Intent: Process satisfaction)


SECTION II. All party respondents were asked to provide general information about their backgrounds. Sample size was 96 respondents. QUESTION 16 "Which party were you represent in this case?"

Plaintiff 30% Defendant 53% Other 16%

QUESTION 17 "Have you ever been involved in a court case before?"

Yes 66% No 34%

QUESTION 18 "Approximately how many prior mediated cases have you been involved in?"

This was first 57% 1-4 23% 5-8 14% 9 or more 5%

QUESTION 19 "What is your gender?"

Male 67% Female 33%

QUESTION 20 "What year were you born?"

Average Year 1949 Modal Year 1947 and 1955

QUESTION 21 "What is your occupation?"

Modal Category Insurance Claims Adjuster QUESTION 22 "Are you a party to this suit as a representative of a corporation, company, or organization involved in this case7"

Yes 66% No 34%

QUESTION 23 "Approximately what is your annual income?"

Under $10,000 5% $10,000 to 19,999 6% $20,000 to 29,999 7% $30,000 to 49,999 47% $50,000 to 100,000 20% >$100,000 3% No Response 8%

QUESTION 24 "How would you describe your race or ethnic origin?"

Caucasian 92% African-American 4% Hispanic 1% Other 1% No Response 2%


Yes 49% No 50% Partially 1%

SECTION III. Parties were asked to respond to this section only if a settlement was reached or partially reached at the mediation conference. Sample size was 48 respondents. QUESTION 26 "You are satisfied with the settlement that was reached" (Intent: Outcome satisfaction)


QUESTION 27 "You would have fared better had this case been litigated" (Intent: Outcome satisfaction)


Question 28 "You think the mediation process was a quicker alternative to litigation for this case" (Intent: Perceptions of pace)


QUESTION 29 "Prior to the mediation conference, you were not confident that a mediated settlement could be reached" (Intent: Pre-mediation expectations)


QUESTION 30 "You think the outcome of this dispute was fair" (Intent: Outcome fairness)


QUESTION 31 "Mediation was less costly than had a settlement been reached through litigation" (Intent: Cost)


QUESTION 32 "You feel that you were the loser in this case" (Intent: Outcome satisfaction)


QUESTION 33 "You feel that the issue that initiated this case has been corrected with this settlement"


QUESTION 34 "Please briefly explain why you decided to try mediation"

Modal Responses: "My attorney suggested it" and "Court ordered" QUESTION 35 "Please feel free to write any other comments, concerns, or suggestions you have regarding your mediation experience"

Overall comments were very favorable

SECTION IV. Parties were asked to respond to this section only if a settlement was not reached during the mediation conference. Sample size was 48 respondents. QUESTION 36 "The mediation conference improved the chances that this case will settle prior to trial" (Intent: Post-mediation expectations)


QUESTION 37 "You are confident that you will fare better if this case goes to trial" (Intent: Overconfidence as a cognitive barrier to resolution)


QUESTION 38 "Prior to the mediation conference, you were confident that a mediated settlement could be reached" (Intent: Pre-mediation expectations)


PILOT MEDIATION PROGRAM17th CIRCUIT COURT CONFIDENTIAL MEDIATOR QUESTIONNAIRE

WITH FREQUENCY DISTRLBUTIONS SECTION I. QUESTIONS All mediator respondents were asked to indicate if they strongly agreed, agreed, neither agree nor disagree, disagree, strongly disagree to statements that were intended to ascertain their general reaction to the mediation process. The sample size was 70 respondents. Responses are given in percentages and may total higher than 100% due to rounding. QUESTION 1 "The attorneys appeared to be genuinely interested in the settlement of the case" (Intent: Assessment of the attorneys)


QUESTION 2 "The mediation process was effective in identifying realistic resolutions to this case" (Intent: Mediation as a reality check' for participant)


QUESTION 3 "The parties appeared to be genuinely interested in the settlement of this case" (Intent: Assessment of the parties)


QUESTION 4 "Counsel appeared to be using the mediation conference as a discovery vehicle" (Intent: Recess appropriateness)


QUESTION 5 "Mediation was inappropriate for this type of case" (Intent: Process Appropriateness)


QUESTION 6 "There appeared to be hostility between the parties" (Intent: Assessment of hostility)


QUESTION 7 "The attorneys appeared to be of even quality and ability" (Intent: Process Appropriateness)


QUESTION 8 "The case summary given to me prior to mediation was not useful" (Intent: Summary assessment)


QUESTION 9 "The legal issues in this case were complex" (Intent: Assessment of complexity of matters of law)




QUESTION 11 "The mediation process was fair" (Intent: Process fairness)


QUESTION 12 Mediators were asked to respond to this question only if a settlement was reached or partially reached through mediation "You believe the settlement reached through mediation would have been approximately the same had this ease been litigated" (Intent: Outcome satisfaction)


QUESTION 13 Mediators were asked to respond to this question only if settlement was reached or partially reached through mediation "The mediation settlement that was reached was fair" (Intent: Process fairness)


QUESTION 14 �Mediators were asked to respond to this question only if a settlement was not reached through mediation "The mediation conference did not improve the chances that this case will settle prior to trial" (Intent: post-mediation expectations)


SECTION II. All mediators were asked to provide answers to the following two questions. Sample size was 70 respondents. QUESTION 15 "Approximately what percentage of the mediation conference was spent in caucus?"

No caucuses 0% Less than 10% 0% 10% to 25% 3% 25%, less than 50% 14% 50% to 75% 42% > than 75% 41%


Yes 47% Partially 4% No 49%

SECTION III. All mediators were asked to complete this section dealing with specific techniques or tactics that they had used during the mediation conference. Please note that Appendix "B" provides an analysis of mediator tactics using factor analysis. For the sake of brevity here, the tactics techniques have been arranged from most frequently used to least frequently used. "Avoided taking sides on important issues during joint sessions" "Tried to gain the trust and confidence of the parties" "Develop rapport with the parties" "Kept negotiations focused on the issues" "Expressed clear rules at the beginning of the conference" "Attempted to move one or more parties off a committed position" "Explained the weaknesses of that party's position during caucus" "Called for frequent caucus" "Helped devise a framework for negotiations" "Kept parties at the table negotiating" "Tried to change the expectations of one or more parties" "Discussed the costs of continued disagreement" "Kept the caucuses focused on the impasse issues" "Clarified the needs of the opposing parties" "Formulated clear goals before or during the conference" "Discussed the interests of all parties affected by this dispute" "Controlled the timing or pace of negotiations" "Made substantive suggestions for compromise" "Argued one party�s case to the other during caucus" "Used humor to lighten the atmosphere" "Attempted to develop trust between the disputants" "Helped establish priorities among the issues" ""Assured each party that the other was being honest" "Attempted to simplify agenda by eliminating or combing issues" "Expressed pleasure at the progress of negotiations" ""Warned the litigation was not a better way to resolve this case" "Attempted to serve simple issues first" "Pressed the parties hard to make compromises" "Arranged agenda to cover general issues first, specific issues last" "Told one or more parties that their position was unrealistic" "Suggested proposals that helped avoid the appearance of defeat on an issue" "Let everyone blow off steam" "Helped one or more parties save face" "Used long mediation session to facilitate compromise" "Inflated the strength of the other party's case during caucus" "Controlled the expression of hostility during caucuses" "Took responsibilities for concessions" "Discussed other settlements of similar cases" "Suggested a particular settlement" "Controlled the expression of hostility during joint sessions"

"Expressed displeasure at the pace of negotiations"

APPENDIX "B"MEDIATOR STYLES AND TACTICS

The data in this Appendix results from a factor analysis of mediator tactics. The mediator tactics

specified in the mediator questionnaire borrowed heavily from the work of Camevale, Lim, and

McLaughlin (1989) as well as Kressel and Pruit (1985), with some minor changes due to the

nature of the dispute being mediated. This was done for two reasons. First, the use of these

tactics allows for a reasonable measure of validity to be assumed. That is, these tactics and

questions about them have proven useful and reliable in previous research. Second, the results

obtained from this research on mediator tactics and styles allows for comparison with these

earlier research efforts. The Carnevale, Lim, and McLaughlin research relied heavily on labor,

family, and community mediators. One of the underlying assumptions of the research on civil

case mediation in the 17th Judicial Circuit of Illinois is that it functions differently than these

more traditional uses of mediation. Mediator tactics and styles may also be different from one

area of mediation to the other.

The respondents in this study were asked to List the extent to which they used certain tactics.

The responses ranged from "did not use at all" to "used very frequently" on a five point scale,

with one representing the tactic not used at all and five representing the tactic used very

frequently. Table B-l presents ratings of the overall use of mediation tactics. Interestingly, the

overall mean use of the mediation tactics in this present research mirrors, for the most part, that

of the earlier research efforts of Carnevale, Lim, and McLaughlin (1989).

TABLE B-l OVERALL MEAN USE OF MEDIATOR TACTICS

Mediator Tactic Mean Use 1. Avoided taking sides on important issues during joint sessions 4.15 2 Tried to gain the trust and confidence of the parties 4.13 3. Developed rapport with the parties 4.11 4. Kept negotiations focused on the issues 3.80 5. Expressed clear rules at the beginning of the conference 3.72 6. Attempted to move one or more parties off a committed position 3.66 7. Explained the weakness of that party's position during caucus 3.65 8. Called for frequent caucus 3.41 9. Helped devise a framework for negotiations 3.39 10. Kept parties at the table negotiating 3.37 11. Tried to change the expectations of one or more parties 3.34 12. Discussed the costs of continued disagreement 3.24 13. Kept the caucuses focused on the impasse issues 3.23 14. Clarified the needs of the opposing parties 3.21 15. Formulated clear goals before or during the conference 3.21 16. Discussed the interests of all parties affected by this dispute 3.20 17. Controlled the timing or pace of negotiations 3.17 18. Made substantive suggestions for compromise 3.13 19. Argued one party's case to the other during caucus 3.04 20. Used humor to lighten the atmosphere 3.01 21. Attempted to develop trust between the disputants 2.99 22. Helped establish priorities among the issues 2.99 23. Assured each party that the other was being honest 2.94 24. Attempted to simplify agenda by eliminating or combing issues 2.92 25. Expressed pleasure at the progress of negotiations 2.89 26. Warned that litigation was not a better way to resolve this dispute 2.77 27. Attempted to settle simple issues first 2.76 28. Pressed the parties hard to make compromise 2.75 29. Arranged agenda to cover general issues first, specific issues last 2.58 30. Told one or more parties that their position was unrealistic 2.41 31. Suggested proposals that helped avoid the appearance of defeat 2.32 32. Let everyone blow off steam 2.31 33. Helped one or more parties save face 2.28 34. Used long mediation session to facilitate compromise 2.27 35. Inflated the strength of the other party�s case during caucus 2.25 36. Controlled the expression of hostility during caucuses 2.24 37. Took responsibility for concessions 2.20 38. Discussed other settlements of similar cases 2.13 39. Suggested a particular settlement 2.10 40. Controlled the expression of hostility during joint sessions 2.03 41. Expressed displeasure at the pace of negotiations 1.56

The data in Table B-l were factor analyzed. Factor analysis refers to a statistical technique

whereby a set of variables (in this case mediator tactics) is represented by a smaller number of

hypothetical variables or factors (in this case mediator styles or roles). A factor analysis

approach is used to address whether the observed correlations among the measured variables can

be better explained by the existence of some underlying hypothetical variables.

The results of the factor analysis are expressed in Table B-2. The results show that there appears

to be four underlying factors or mediator styles among the mediators in the Pilot Program.

Depending on the specific tactics that were used, the mediator styles are classified as either

facilitator, Instigator, Evaluator, or Referee.

The Facilitator style of mediator clearly conforms to the traditional role of the mediator as

depicted in the literature on mediation. This person sees their role as an orchestrator, a catalyst,

aimed at improving the climate between the parties. These individuals do not take a pro-active

approach in suggesting a particular solution. Mediators using this style focus on the contextual

aspects of the mediation. They attempt to develop trust between the parties and try to arrange the

agenda by simplifying and prioritizing the issues. This was the most frequently utilized style.

The Instigator style of mediator is in many ways opposite of the Facilitator. This person takes an

active role in trying to resolve the dispute. These individuals will be almost coercive in the

techniques. They will suggest a particular solution, tell parties that they are being unrealistic, and

will inflate the strength of the other parties case in order to promote a solution. They want

closure and will press the parties hard for compromise. The Evaluator is somewhere in between

the Facilitator and Instigator in style. This style attempts to control the negotiation process by

keeping the parties focused and by using humor to lighten the tension of the session. This person

will also make use of some of the Instigator tactics to press for compromises by arguing one

party's case to the other during caucus and warning of the pending problems should the case not

settle in mediation. Both the Instigator and Evaluator styles were used about as frequently.

The Referee style seems to be a statistical product of a very few cases where there was such

hostility between the parties that the mediator spent much of the time trying to control the

hostility rather than trying to bring about closure. Other aspects of this style seem to suggest that

mediators utilizing this role failed to express clear rules at the beginning of the session and were

negative in comments to the parties about the pace of negotiations. This was the least utilized

style.

The factors or roles were correlated with the outcome of the mediation. There was a slight but

not statistically significant positive correlation between settlement being reached and the use of

the Instigator and Evaluator styles. Inversely, there was a slight but not statistically significant

negative correlation between settlements being reached and the use of the Facilitator and Referee

styles. This is consistent with the opinions expressed in the interviews with the attorneys in the

study's sample. The attorneys seemed to want the mediators to be more pro-active and press the

parties for settlement. However, these results should be viewed with caution because of their

lack of statistical significance.

TABLE B-2 FACTOR ANALYSIS OF MEDIATION TACTICS

STYLES LOADINGS

Factor 1: Facilitator Kept negotiations focused on the issues .60519 Clarified the needs of opposing party .70930 Helped devise a framework for negotiations .83320 Helped establish priorities among the issues .74316 Arranged agenda to cover general issues first .70206 Attempted to develop trust between the parties .71164 Attempted to settle simple issues first .65176 Expressed clear rules at the beginning of conference .66499 Expressed pleasure at the pace of negotiations .64026

Factor 2: Instigator

Inflated strength of other party's case during caucus .49368 Explained weakness of that party's case during caucus .41301 Used long mediation sessions to facilitate compromise .57220 Warned that litigation was not a better way .55217 Told party that their position was unrealistic .68436 Made substantive suggestion for compromise .51721 (Did not) attempt to settle simple issues first -.4267 Discussed other settlements of similar cases .75475 Tried to change the expectations of one or more parties .66257 Pressed parties hard to make compromise .71923 Suggested a particular settlement .74845

Factor 3: Evaluator

Kept negotiations focused on the issues .47553 Explained the weakness of that party's case during caucus .61417 Warned that litigation was not a better way .40821 Called for frequent caucuses .78325 Discussed the costs of continued disagreement .75176 Used humor to lighten atmosphere .64408 Controlled the timing and pace of negotiations .67482 Pressed parties hard to make compromises .42866 Argued one party�s case to the other during caucus .65695

Factor 4: Referee

Expressed displeasure at the pace of negotiations .68505 Let everyone blow off steam .58885 (Did not) express clear rules at beginning of session -.3534 Controlled the expression of hostility during joint session .73841 Controlled the expression of hostility during caucus .79020

APPENDIX "C"GENERAL ORDER AND MISCELLANEOUS COURT FORMS

The documents contained in this appendix are derived from the 17th Circuit Court and are being

used as part of the mediation program. At this time no local rules have been established for the

program. By General Order 3.09, a pilot court-annexed mediation program for major civil cases

with claim amounts in excess of $30,000 was established.

During the evaluation process, a good deal of controversy was generated about the ordering of

cases to mediation by the judge. The general impression of those responding to the evaluation

efforts was that the program should be entirely voluntary. In the text of the evaluative report, this

topic is covered in greater detail.

An informational sheet war produced by the ADR Center to explain the mediation process and

procedures once a case had been stipulated or ordered to mediation. Also, a copy of General

Order 3.09 was available to further explain the process. These documents are included herein.

Additional documents were produced by the Abitration Administrator for the mediation

program, these following documents are also included herein:

1. ORDER OF REFERRAL TO COURT-ANNEXED MEDIATION2.

CONFIRMATION OF MEDIATION

3. CONFIDENTIALITY AGREEMEMT AND NON-REPRESENTATION

ACKNOWLEDGMENT

4. MEDIATION HELD/NO AGREEMENT

5. MEMORANDUM OF AGREEMENT

17TH JUDICIAL CIRCUITMAJOR CIVIL CASE MEDIATION PILOT PROGRAM

P u r s u a n t t o G e n e r a l O r d e r 3 . 0 9 p a r t i e s ma y s t i p u l a t e t o me d i a t i o n o r t h e C o u r t ma y o r d e r a c a s e t o me d i a t i o n . T h e O r d e r o f R e f e r r a l t o C o u r t -A n n e x e d M e d i a t i o n s h o u l d b e p r e p a r e d a n d s i g n e d . T h e c l e r k w i l l r e t a i n a c o p y o f t h e O r d e r f o r t h e A D R C e n t e r . T h e p a r t i e s s h o u l d mu t u a l l y a g r e e u p o n a me d i a t o r w i t h i n 1 4 d a y s o f t h e O r d e r . I f t h e p a r t i e s c a n n o t a g r e e , t h e C o u r t w i l l a p p o i n t o n e w i t h i n 2 1 d a y s o f t h e O r d e r . E i t h e r p a r t y ma y c o n t a c t t h e me d i a t o r a n d a r r a n g e a mu t u a l l y c o n v e n i e n t t i me f o r t h e me d i a t i o n s e s s i o n . E i t h e r p a r t y o r t h e me d i a t o r s h o u l d c o n t a c t t h e A D R C e n t e r a n d r e s e r v e a r o o m. T h e A D R C e n t e r w i l l s e n d c o n f i r ma t i o n l e t t e r s o f t h e d a t e , t i me a n d p l a c e t o a l l p a r t i e s i n v o l v e d w i t h c o p y t o t h e me d i a t o r . E a c h p a r t y w i l l b e r e q u i r e d t o p r e p a r e a b r i e f s u mma r y o f h i s / h e r c a s e 1 0 d a y s p r i o r t o t h e me d i a t i o n s e s s i o n . S u mma r i e s s h o u l d b e s e n t d i r e c t l y t o t h e me d i a t o r f o r h i s / h e r r e v i e w . T H E S E WI L L B E K E P T CONFIDENTIAL. N a me s o f a l l p a r t i c i p a n t s i n t h e me d i a t i o n s h a l l b e d i s c l o s e d t o t h e me d i a t o r i n t h e s u mma r y p r i o r t o t h e s e s s i o n . A t t h e s c h e d u l e d me d i a t i o n t h e me d i a t o r w i l l r e q u i r e e v e r y p a r t i c i p a n t t o s i g n a C o n f i d e n t i a l i t y A g r e e me n t w h i c h A g r e e me n t s h a l l b e ma d e a p a r t o f t h e c o u r t r e c o r d i n t h e c a s e . T h e f i r s t me d i a t i o n c o n f e r e n c e mus t b e h e l d w i t h i n 8 w e e k s o f t h e O r d e r o f R e f e r r a l . M e d i a t i o n s h a l l b e c o mpl e t e d w i t h i n 7 w e e k s o f t h e f i r s t me d i a t i o n . Wi n n e b a g o C o u n t y me d i a t i o n s w i l l b e h e l d a t t h e A D R C e n t e r ( A r b i t r a t i o n C e n t e r ) , S t e w a r t S q u a r e , S u i t e # 2 5 , 3 0 8 We s t S t a t e S t r e e t , R o c k f o r d . I L 61101 . B o o n e C o u n t y me d i a t i o n s w i l l b e h e l d a t t h e B o o n e C o u n t y C o u r t h o u s e , 6 0 1 N o r t h M a i n S t r e e t , B e l v i d e r e , I L . B o o n e C o u n t y me d i a t i o n s ma y a l s o b e h e l d a t t h e A D R C e n t e r i n R o c k f o r d . I n a n y e v e n t t h e A D R C e n t e r w i l l ma k e t h e n e c e s s a r y a r r a n g e me n t s .

3 . 9 C o u r t - A n n e x e d M e d i a t i o n I n a n e f f o r t t o p r o v i d e t h e c i t i z e n s o f t h e 1 7 t h J u d i c i a l C i r c u i t w i t h a n e x p e d i t i o u s a n d e x p e n s e s a v i n g a l t e r n a t i v e t o t r a d i t i o n a l l i t i g a t i o n i n t h e r e s o l u t i o n o f c o n t r o v e r s i e s , t h e r e i s h e r e b y e s t a b l i s h e d a p i l o t p r o g r a m o f C o u r t - A n n e x e d M e d i a t i o n o f c i v i l c a s e s t o o p e r a t e i n t h i s J u d i c i a l C i r c u i t . M e d i a t i o n u n d e r t h i s o r d e r i n v o l v e s t h e c o n f i d e n t i a l p r o c e s s b y w h i c h a n e u t r a l me d i a t o r , s e l e c t e d b y t h e p a r t i e s o r a p p o i n t e d b y t h e c o u r t , a s s i s t s t h e l i t i g a n t s i n r e a c h i n g a mu t u a l l y a c c e p t a b l e a g r e e me n t . T h e r o l e o f t h e me d i a t o r i s t o a s s i s t i n i d e n t i f y i n g t h e i s s u e s , r e d u c i n g mi s u n d e r s t a n d i n g , c l a r i fy i n g p r i o r i t i e s , e x p l o r i n g a r e a s o f c o mpr o mi s e , a n d f i n d i n g p o i n t s o f a g r e e me n t a s w e l l a s l e g i t i ma t e p o i n t s o f d i s a g r e e me n t . A n y a g r e e me n t r e a c h e d b y t h e p a r t i e s i s t o b e b a s e d o n t h e a u t o n o mo u s d e c i s i o n s o f t h e p a r t i e s a n d n o t t h e d e c i s i o n s o f t h e me d i a t o r . I t i s a n t i c i p a t e d t h a t a n a g r e e me n t ma y n o t r e s o l v e a l l o f t h e d i s p u t e d i s s u e s , b u t t h e p r o c e s s c a n r e d u c e p o i n t s o f c o n t e n t i o n . P a r t i e s a n d t h e i r r e p r e s e n t a t i v e s a r e r e q u i r e d t o me d i a t e i n g o o d f a i t h b u t a r e n o t c o mpe l l e d t o r e a c h a n a g r e e me n t

( 1 ) A C T I O N S E L I G I B L E F O R C O U R T - A N N E X E D M E D I A T I O N

( A ) R e f e r r a l b y j u d g e o r b y s t i p u l a t i o n E x c e p t a s h e r e i n a f t e r p r o v i d e d , t h e j u d g e t o w h o m a m a t t e r i s a s s i g n e d m a y o r d e r a n y c o n t e s t e d c i v i l m a t t e r a s s e r t i n g a c l a i m h a v i n g a v a l u e , i r r e s p e c t i v e o f d e f e n s e s o r s e t o f f s , i n e x c e s s o f $ 3 0 , 0 0 0 r e f e r r e d t o m e d i a t i o n . I n a d d i t i o n , t h e p a r t i e s t o a n y s u c h m a t t e r m a y f i l e a w r i t t e n s t i p u l a t i o n t o m e d i a t e a n y i s s u e b e t w e e n t h e m a t a n y t i m e . S u c h s t i p u l a t i o n s h a l l b e i n c o r p o r a t e d i n t o t h e o r d e r o f r e f e r r a l .

( B ) E x c l u s i o n s f r o m M e d i a t i o n

E x c e p t a s o t h e r w i s e s e t f o r t h i n ( 1 ) ( A ) a b o v e , m a t t e r s a s m a y b e s p e c i f i e d b y a d m i n i s t r a t i v e o r d e r o f t h e c h i e f j u d g e o f t h e c i r c u i t s h a l l n o t b e r e f e r r e d t o m e d i a t i o n e x c e p t u p o n p e t i t i o n o f a l l p a r t i e s .

( 2 ) S C H E D U L I N G O F M E D I A T I O N

( A ) C o n f e r e n c e o r H e a r i n g D a t e

U n l e s s o t h e r w i s e o r d e r e d b y t h e c o u r t , t h e f i r s t m e d i a t i o n

c o n f e r e n c e s h a l l b e h e l d w i t h i n e i g h t ( 8 ) w e e k s o f t h e O r d e r o f R e f e r r a l . A t l e a s t t e n ( 1 0 ) d a y s b e f o r e t h e c o n f e r e n c e , e a c h s i d e s h a l l p r e s e n t t o t h e m e d i a t o r a b r i e f , w r i t t e n s u m m a r y o f t h e c a s e c o n t a i n i n g a l i s t o f i s s u e s a s t o e a c h p a r t y . I f t h e a t t o r n e y f i l i n g t h e s u m m a r y w i s h e s i t s c o n t e n t s t o r e m a i n c o n f i d e n t i a l , s h e / h e s h o u l d a d v i s e t h e m e d i a t o r i n w r i t i n g a t t h e s a m e t i m e t h e s u m m a r y i s f i l e d . T h e s u m m a r y s h a l l i n c l u d e t h e f a c t s o f t h e o c c u r r e n c e , o p i n i o n s o n l i a b i l i t y , a l l d a m a g e s a n d i n j u r y i n f o r m a t i o n , a n d a n y o f f e r s o r d e m a n d s r e g a r d i n g s e t t l e m e n t . N a m e s o f a l l p a r t i c i p a n t s i n t h e m e d i a t i o n s h a l l b e d i s c l o s e d t o t h e m e d i a t o r i n t h e s u m m a r y p r i o r t o t h e s e s s i o n .

( B ) N o t i c e o f D a t e , T i m e a n d P l a c e

W i t h i n 2 8 d a y s a f t e r t h e O r d e r o f R e f e r r a l , t h e m e d i a t o r s h a l l n o t i f y t h e p a r t i e s i n w r i t i n g o f t h e d a t e a n d t i m e o f t h e m e d i a t i o n c o n f e r e n c e . W i n n e b a g o C o u n t y m e d i a t i o n s w i l l b e h e l d a t t h e A D R C e n t e r ( A r b i t r a t i o n C e n t e r ) , S t e w a r t S q u a r e , S u i t e # 2 5 , 3 0 8 W e s t S t a t e S t r e e t , R o c k f o r d , I L 6 1 1 0 1 . B o o n e C o u n t y m e d i a t i o n s w i l l b e h e l d a t t h e B o o n e C o u n t y C o u r t h o u s e , 6 0 1 N o r t h M a i n S t r e e t , B e l v i d e r e , I L 6 1 0 0 8 . ( C ) M o t i o n t o D i s p e n s e w i t h M e d i a t i o n A p a r t y m a y m o v e , w i t h i n 1 4 d a y s a f t e r t h e O r d e r o f R e f e r r a l , t o d i s p e n s e w i t h m e d i a t i o n i f :

( 1 ) T h e i s s u e t o b e c o n s i d e r e d h a s b e e n p r e v i o u s l y m e d i a t e d b e t w e e n t h e s a m e p a r t i e s p u r s u a n t t o G e n e r a l O r d e r o f t h e 1 7 t h J u d i c i a l C i r c u i t ;

( 2 ) T h e i s s u e p r e s e n t s a q u e s t i o n o f l a w o n l y ; ( 3 ) T h e o r d e r v i o l a t e s S e c . ( 1 ) ( B ) o f t h i s G e n e r a l O r d e r ( 4 ) O t h e r g o o d c a u s e i s s h o w n .

( D ) M o t i o n t o D e f e r M e d i a t i o n W i t h i n 1 4 d a y s o f t h e O r d e r o f R e f e r r a l , a n y p a r t y m a y f i l e a m o t i o n w i t h t h e c o u r t t o d e f e r t h e p r o c e e d i n g . T h e m o v a n t s h a l l s e t t h e m o t i o n t o d e f e r f o r h e a r i n g p r i o r t o t h e s c h e d u l e d d a t e f o r m e d i a t i o n . N o t i c e o f t h e h e a r i n g s h a l l b e p r o v i d e d t o a l l i n t e r e s t e d p a r t i e s , i n c l u d i n g a n y m e d i a t o r w h o h a s b e e n a p p o i n t e d . T h e m o t i o n s h a l l s e t f o r t h , i n d e t a i l , t h e f a c t s a n d c i r c u m s t a n c e s

s u p p o r t i n g t h e m o t i o n . M e d i a t i o n s h a l l b e t o l l e d u n t i l d i s p o s i t i o n o f t h e m o t i o n .

( 3 ) M E D I A T I O N R U L E S A N D P R O C E D U R E S

( A ) A p p o i n t m e n t o f t h e M e d i a t o r ( 1 ) W i t h i n 1 4 d a y s o f t h e O r d e r o f R e f e r r a l , t h e p a r t i e s m a y a g r e e u p o n a s t i p u l a t i o n w i t h t h e c o u r t d e s i g n a t i n g :

( a ) A c e r t i f i e d m e d i a t o r ; o r ( b ) A m e d i a t o r w h o d o e s n o t m e e t t h e c e r t i f i c a t i o n r e q u i r e m e n t s

o f t h e s e r u l e s b u t w h o , i n t h e o p i n i o n o f t h e p a r t i e s a n d u p o n r e v i e w b y a n d a p p r o v a l o f t h e p r e s i d i n g j u d g e , i s o t h e r w i s e q u a l i f i e d b y t r a i n i n g o r e x p e r i e n c e t o m e d i a t e a l l o r s o m e o f t h e i s s u e s i n t h e p a r t i c u l a r c a s e .

( 2 ) I f t h e p a r t i e s c a n n o t a g r e e u p o n a m e d i a t o r w i t h i n 1 4 d a y s o f t h e O r d e r o f R e f e r r a l , t h e p l a i n t i f f ' s a t t o r n e y ( o r a n o t h e r a t t o r n e y a g r e e d u p o n b y a l l a t t o r n e y s ) s h a l l s o n o t i f y t h e c o u r t w i t h i n 7 d a y s o f t h e e x p i r a t i o n o f t h e p e r i o d t o a g r e e o n a m e d i a t o r , a n d t h e c o u r t s h a l l a p p o i n t a c e r t i f i e d m e d i a t o r s e l e c t e d b y r o t a t i o n o r b y s u c h o t h e r p r o c e d u r e s a s m a y b e a d o p t e d b y a d m i n i s t r a t i v e o r d e r o f t h e c h i e f j u d g e i n t h e c i r c u i t i n w h i c h t h e a c t i o n i s p e n d i n g . ( B ) C o m p e n s a t i o n O f t h e M e d i a t o r

E a c h p i l o t m e d i a t o r s h a l l a g r e e t o m e d i a t e f i v e c a s e s w i t h o u t c o m p e n s a t i o n . T h e r e a f t e r , t h e m e d i a t o r s h a l l b e c o m p e n s a t e d b y t h e p a r t i e s a t t h e r a t e o f $ 1 2 5 p e r h o u r u n l e s s o t h e r w i s e a g r e e d i n w r i t i n g . E a c h p a r t y s h a l l p a y a p r o p o r t i o n a t e s h a r e o f t h e t o t a l c h a r g e s o f t h e m e d i a t o r .

( C ) D i s q u a l i f i c a t i o n o f a M e d i a t o r A n y p a r t y m a y m o v e t o e n t e r a n o r d e r d i s q u a l i f y i n g a m e d i a t o r f o r g o o d c a u s e . I f t h e c o u r t r u l e s t h a t a m e d i a t o r i s d i s q u a l i f i e d f r o m h e a r i n g a c a s e , a n o r d e r s h a l l b e e n t e r e d s e t t i n g f o r t h t h e n a m e o f a q u a l i f i e d r e p l a c e m e n t . N o t h i n g i n t h i s p r o v i s i o n s h a l l p r e c l u d e m e d i a t o r s f r o m d i s q u a l i f y i n g t h e m s e l v e s o r r e f u s i n g a n y a s s i g n m e n t . T h e t i m e f o r m e d i a t i o n s h a l l b e t o l l e d d u r i n g a n y p e r i o d s i n w h i c h a m o t i o n t o d i s q u a l i f y i s p e n d i n g .

( D ) I n t e r i m o r E m e r g e n c y R e l i e f

A p a r t y m a y a p p l y t o t h e c o u r t f o r i n t e r i m o r e m e r g e n c y r e l i e f a t a n y t i m e . M e d i a t i o n s h a l l c o n t i n u e w h i l e s u c h a m o t i o n i s p e n d i n g a b s e n t a c o n t r a r y o r d e r o f t h e c o u r t o r a d e c i s i o n o f t h e m e d i a t o r t o a d j o u r n p e n d i n g d i s p o s i t i o n o f t h e m o t i o n .

( E ) S a n c t i o n s f o r F a i l u r e t o A p p e a r I f a p a r t y f a i l s t o a p p e a r a t a d u l y n o t i c e d m e d i a t i o n c o n f e r e n c e w i t h o u t g o o d c a u s e , t h e c o u r t u p o n m o t i o n s h a l l i m p o s e s a n c t i o n s , i n c l u d i n g a n a w a r d o f m e d i a t o r a n d a t t o r n e y f e e s a n d o t h e r c o s t s , a g a i n s t t h e p a r t y f a i l i n g t o a p p e a r . I f a p a r t y t o m e d i a t i o n i s a p u b l i c e n t i t y t h a t p a r t y s h a l l b e d e e m e d t o a p p e a r a t a m e d i a t i o n c o n f e r e n c e b y t h e p h y s i c a l p r e s e n c e o f a r e p r e s e n t a t i v e w i t h f u l l a u t h o r i t y t o n e g o t i a t e o n b e h a l f o f t h e e n t i t y a n d t o r e c o m m e n d s e t t l e m e n t t o t h e a p p r o p r i a t e d e c i s i o n -m a k i n g b o d y o f t h e e n t i t y . O t h e r w i s e , u n l e s s s t i p u l a t e d b y t h e p a r t i e s , o r b y o r d e r o f t h e c o u r t , a p a r t y i s d e e m e d t o a p p e a r a t a m e d i a t i o n c o n f e r e n c e i f t h e f o l l o w i n g p e r s o n s a r e p h y s i c a l l y p r e s e n t :

( 1 ) T h e p a r t y o r i t s r e p r e s e n t a t i v e h a v i n g f u l l a u t h o r i t y t o s e t t l e w i t h o u t f u r t h e r c o n s u l t a t i o n ; a n d ( 2 ) T h e p a r t y ' s c o u n s e l o f r e c o r d , i f a n y ; a n d ( 3 ) A r e p r e s e n t a t i v e o f t h e i n s u r a n c e c a r r i e r f o r a n y i n s u r e d p a r t y w h o i s n o t s u c h c a r r i e r ' s o u t s i d e c o u n s e l a n d w h o h a s f u l l a u t h o r i t y t o n e g o t i a t e a n d r e c o m m e n d s e t t l e m e n t s t o t h e l i m i t s o f t h e p o l i c y o r t h e m o s t r e c e n t d e m a n d , w h i c h e v e r i s l o w e r w i t h o u t f u r t h e r c o n s u l t a t i o n .

( F ) A d j o u r n m e n t s

T h e m e d i a t o r m a y a d j o u r n t h e m e d i a t i o n c o n f e r e n c e a t a n y t i m e a n d m a y s e t t i m e s f o r r e c o n v e n i n g t h e a d j o u r n e d c o n f e r e n c e n o t w i t h s t a n d i n g S e c . ( I ) o f t h i s G e n e r a l O r d e r . N o f u r t h e r n o t i f i c a t i o n i s r e q u i r e d f o r p a r t i e s p r e s e n t a t t h e a d j o u r n e d c o n f e r e n c e .

( G ) C o u n s e l T h e m e d i a t o r s h a l l a t a l l t i m e s b e i n c o n t r o l o f t h e m e d i a t i o n a n d t h e p r o c e d u r e s t o b e f o l l o w e d i n t h e m e d i a t i o n . C o u n s e l s h a l l b e p e r m i t t e d t o c o m m u n i c a t e p r i v a t e l y w i t h t h e i r c l i e n t s .

( H ) C o m m u n i c a t i o n w i t h P a r t i e s

T h e m e d i a t o r m a y m e e t a n d c o n s u l t p r i v a t e l y w i t h e i t h e r p a r t y a n d h i s / h e r r e p r e s e n t a t i v e d u r i n g t h e m e d i a t i o n s e s s i o n .

( I ) C o m p l e t i o n o f M e d i a t i o n M e d i a t i o n s h a l l b e c o m p l e t e d w i t h i n s e v e n ( 7 ) w e e k s o f t h e f i r s t m e d i a t i o n c o n f e r e n c e u n l e s s e x t e n d e d b y o r d e r o f t h e c o u r t o r b y s t i p u l a t i o n o f t h e p a r t i e s .

( J ) N o A g r e e m e n t I f t h e p a r t i e s d o n o t r e a c h a n a g r e e m e n t a s t o a n y m a t t e r a s a r e s u l t o f m e d i a t i o n , t h e m e d i a t o r s h a l l r e p o r t t h e l a c k o f a n a g r e e m e n t t o t h e c o u r t w i t h o u t c o m m e n t o r r e c o m m e n d a t i o n . I f t h e p a r t i e s d o n o t r e a c h a n a g r e e m e n t a s t o a n y m a t t e r a s a r e s u l t o f m e d i a t i o n , t h e m e d i a t o r s h a l l r e p o r t t h e l a c k o f a n a g r e e m e n t t o t h e c o u r t w i t h o u t c o m m e n t o r r e c o m m e n d a t i o n .

( K ) A g r e e m e n t I f a n a g r e e m e n t i s r e a c h e d , i t s h a l l b e r e d u c e d t o w r i t i n g a n d s i g n e d b y t h e p a r t i e s a n d t h e i r c o u n s e l , i f a n y , a t t h e c o n c l u s i o n o f t h e m e d i a t i o n .

( L ) I m p o s i t i o n o f S a n c t i o n s I n t h e e v e n t o f a n y b r e a c h o r f a i l u r e t o p e r f o r m u n d e r t h e a g r e e m e n t , t h e c o u r t u p o n m o t i o n m a y i m p o s e s a n c t i o n s , i n c l u d i n g c o s t s , a t t o r n e y f e e s , o r o t h e r a p p r o p r i a t e r e m e d i e s i n c l u d i n g e n t r y o f j u d g m e n t o n t h e a g r e e m e n t .

( M ) D i s c o v e r y D i s c o v e r y ma y c o n t i n u e t h r o u g h o u t me d i a t i o n .

( N ) C o n f i d e n t i a l i t y o f C o mmu n i c a t i o n s A l l o r a l o r w r i t t e n c o mmu n i c a t i o n s i n a me d i a t i o n c o n fe r e n c e , o t h e r t h a n e x e c u t e d s e t t l e me n t a g r e e me n t s , s h a l l h e e x e mp t f r o m d i s c o v e r y a n d s h a l l b e c o n f i d e n t i a l a n d i n a d mi s s i b l e a s e v i d e n c e i n t h e u n d e r l y i n g c a u s e o f a c t i o n u n l e s s a l l p a r t i e s a g r e e o t h e r w i s e . E v i d e n c e w i t h r e s p e c t t o a l l e g e d s e t t l e me n t a g r e e me n t s s h a l l b e a d mi s s i b l e i n p r o c e e d i n g s t o e n f o r c e t h e s e t t l e me n t . S u b j e c t t o t h e f o r e g o i n g , u n l e s s a u t h o r i z e d b y t h e p a r t i e s , t h e me d i a t o r ma y n o t d i s c l o s e a n y i n f o r ma t i o n o b t a i n e d d u r i n g t h e me d i a t i o n p r o c e s s .

( O ) F o r ms

T h e f o l l o w i n g f o r ms s h a l l b e u s e d i n c o n j u n c t i o n w i t h c o u r t - a n n e x e d me d i a t i o n :

( 1 ) O r d e r o f R e f e r r a l t o C o u r t - A n n e x e d M e d i a t i o n ( 2 ) C o n f i d e n t i a l i t y A g r e e me n t a n d N o n r e p r e s e n t a t i o n

A c k n o w l e d g me n t ( 3 ) M e d i a t i o n H e l d / N o A g r e e me n t R e s u l t e d ( 4 ) M e mor a n d u m o f A g r e e me n t ( 5 ) M e mor a n d u m o f U n d e r s t a n d i n g / A g r e e me n t ( 6 ) O r d e r A p p o i n t i n g M e d i a t o r ( 7 ) M e d i a t o r ' s R e p o r t / O r d e r

( 4 ) MEDIATOR QUALIFICATIONS

( A ) C i r c u i t C o u r t M e d i a t o r s

T h e c h i e f j u d g e s h a l l ma i n t a i n a l i s t o f me d i a t o r s w h o h a v e b e e n c e r t i f i e d b y t h e c o u r t a n d w h o h a v e r e g i s t e r e d f o r a p p o i n t me n t .

F o r c e r t i f i c a t i o n a me d i a t o r o f c i r c u i t c o u r t c i v i l ma t t e r s i n e x c e s s o f $ 3 0 , 0 0 0 ma t t e r s mus t :

( 1 ) C o mpl e t e a me d i a t i o n t r a i n i n g p r o g r a m a p p r o v e d b y t h e c h i e f j u d g e o f t h e 1 7 t h J u d i c i a l C i r c u i t , a n d

( 2 ) B e a me mb e r i n g o o d s t a n d i n g o f t h e I l l i n o i s B a r w i t h a t l e a s t s e v e n y e a r s o f p r a c t i c e o r b e a r e t i r e d j u d g e ; a n d

( 3 ) B e o f g o o d mo r a l c h a r a c t e r .

( B ) M e d i a t o r G e n e r a l S t a n d a r d s I n e a c h c a s e , t h e me d i a t o r s h a l l c o mp l y w i t h s u c h g e n e r a l s t a n d a r d s a s ma y , f r o m t i me t o t i me , b e e s t a b l i s h e d a n d p r o mu l g a t e d i n w r i t i n g b y t h e c h i e f j u d g e o f t h e 1 7 t h J u d i c i a l C i r c u i t .

( C ) D e c e r t i f i c a t i o n o f M e d i a t o r s

T h e e l i g i b i l i t y o f e a c h me d i a t o r t o r e t a i n t h e s t a t u s o f a c e r t i f i e d me d i a t o r ma y b e p e r i o d i c a l l y r e v i e w e d b y t h e c h i e f j u d g e . F a i l u r e t o a d h e r e t o t h i s G e n e r a l O r d e r g o v e r n i n g me d i a t i o n o r t h e G e n e r a l S t a n d a r d s p r o v i d e d f o r a b o v e ma y r e s u l t i n t h e d e c e r t i f i c a t i o n o f t h e me d i a t o r .

STATE OF ILLINOISIN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT

COUNTY OF WINNEBAGO

P l a i n t i f f ( s ) , v s .

ORDER OF REFERRAL TO COURT-ANNEXED MEDIATION

D e f e n d a n t ( s ) .

THIS CAUSE came before the Court pursuant to General Order No. 3.09 of the 17th Judicial Circuit for referral to mediation.

THE COURT HEREBY ORDERS: 1. All parties are required to participate in mediation.

a. The appearance of counsel who will try the case and each party or representatives of

each party with full authority to enter into a full and complete compromise and settlement is mandatory. If insurance is involved, an adjuster with authority to negotiate and recommend settlements shall attend. All parties are urged to bring interested individuals who might assist in facilitating settlement to the negotiation session (For example lien holders, governmental officials and others whose approval is necessary or those whore interest may need to be negotiated and compromised).

b. The Court may impose sanctions against parties who do not attend the conference or

violate the terms of this Order.

c. At least ten days before the conference, each side shall present to mediator a brief, written summary of the case containing a list of issues as to each party. If the attorney filing the summary wishes its contents to remain confidential, she/he should advise the mediator in writing at the same time the summary is filed. The summary shall include the facts of the occurrence, opinions on liability, all damages and injury information, and any offers or demands regarding settlement. Names of all participants in the mediation shall be disclosed to the mediator in the summary prior to the session.

d. All discussions, representations, and statements made at the mediation conference

shall be privileged consistent with the Confidentiality Agreement to be signed on behalf of each party prior to the commencement of the first mediation conference. The Confidentiality Agreement shall be made a part of the court record in the case.

e. The mediator shall serve without compensation during the pilot program up to the time each pilot mediator has mediated five cases. Thereafter, the mediator shall be compensated by the parties at the rate of $125 per hour unless otherwise agreed in writing, and each party shall bear the cost proportionately.

f. The mediator has no power to compel or enforce settlement agreements and does not give legal advice. If a settlement is reached in this case, the attorneys shall reduce the agreement to writing at the conclusion of the mediation.

2. The plaintiff�s attorney (or another attorney agreed upon by all attorneys) shall be responsible

for obtaining a mediator and scheduling the mediation conference within 14 days of this Order of Referral. The parties shall attempt to agree upon a mediator. A date and time for mediation convenient to all shall be obtained from the mediator.

3. If the parties cannot agree on a mediator within 14 days of the Order of Referral, the responsible attorney shall notify the Court within seven days of the expiration of the 14- day period, and the Court shall appoint a certified mediator selected by rotation.

4. Mediation shall be completed within seven weeks of the first mediation conference unless extended by order of the Court or by stipulation of the parties.

5. This case is set for status__________________________________________________ 19___, at ____________ .m.

__________________________________ JUDGE

Dated: _______________________

Confirmation of Mediation 15-Jul-94

To:

#Error From: ADR Center Re:

#Error#Error

vs.

#Error This will confirm the mediation of above entitled matter set: #Error #Error at the ADR Center, Stewart Square, Suite 25, 308 West State Street, Rockford. IL 61101. Paragraph l (c) of the Order of Referral to Court-Annexed Mediation requires all attorneys of record to prepare a brief case summary to be forwarded directly to the mediator at least ten days prior to the mediation conference. If you have any questions, please call 987-7739.

STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT COUNTY OF WINNEBAGO

Plaintiffs, Case No.

vs.

Defendants.

CONFIDENTIALITY AGREEMENT ANDNONREPRESENTATION ACKNOWLEDGEMENT

IT IS HEREBY AGREED b y a n d b e t w e e n t h e me d i a t i o n

p a r t i c i p a n t s , a n d M e d i a t o r , t h a t a l l ma t t e r s d i s c u s s e d

d u r i n g a n y a n d a l l me d i a t i o n s e s s i o n s s h a l l b e c o n f i d e n t i a l a n d s h a l l

n o t b e d i s c l o s e d b y t h e p a r t i c i p a n t s o r t h e me d i a t o r i n a n y c o u r t o f l a w .

I t i s f u r t h e r a c k n o w l e d g e d b y t h e p a r t i e s t o t h i s l a w s u i t t h a t t h e M e d i a t o r ,

, a n d h i s l a w f i r m,

, a r e n o t r e p r e s e n t i n g a n y p a r t y t o t h i s l a w s u i t a n d a r e n o t

a f f o r d i n g o r p r o v i d i n g a n y l e g a l a d v i c e t o a n y s u c h p a r t y .

D a t e d :

__________________________________ _____________________________ MEDIATOR

__________________________________ _____________________________ __________________________________ _____________________________

MEDIATION HELD/NO AGREEMENT RESULTED Date Case No. IN THE MATTER OF MEDIATION BETWEEN:

vs.

, Mediator, appeared for mediation at the Alternative

Dispute Resolution Center (Arbitration Center of Winnebago County)

on , 1994, for their scheduled mediation.

We appreciate their appearance and their good faith effort to attempt

mediation of the dispute that exists between them.

Unfortunately, they were unable to resolve their dispute

through our services.

___________________________

MEDIATOR

MEMORANDUM OF AGREEMENT

Date Case No. IN THE MATTER OF MEDIATION BETWEEN:

vs.

We , t h e u n d e r s i g n e d , h a v i n g p a r t i c i p a t e d i n a me d i a t i o n s e s s i o n o n , 1 9 9 4 , a n d b e i n g s a t i s f i e d t h a t t h e p r o v i s i o n s o f t h e r e s o l u t i o n o f o u r d i s p u t e a r e f a i r a n d r e a s o n a b l e , h e r e b y a g r e e t o a b i d e b y a n d fu l f i l l t h e fo l l o w i n g : __________________________________ ________________________

MEDIATOR __________________________________ ________________________ __________________________________ ________________________

APPENDIX "D" INTERVIEW QUESTIONS

In order to provide some measure of consistency when conducting the face-to-faceinterviews

with a sample of the pilot program's participants, a general guideline was

developed that was followed during the course of the interview. Those guidelines are

contained in this appendix. It should be noted that respondents were always free to

provide information that was not part of this structured process.

Interviews were conducted with a sample of the attorneys and with the "Pilot 13"mediators. In an

effort to maintain anonymity, the actual respondents are not identified in

the text of this report. The actual responses are on file with the researcher. Most of the

responses were tape recorded to aid in the transcription process.

The purpose of the interview data was to augment the written questionnaires, which forthe most

part were closed-ended, forced-answer questions. The researchers were

especially interested in the participants' perceptions on how mediation differs from

traditional negotiated settlement processes (e.g. pre-trial conference) as well as a

comparison of mediation to arbitration.

17TH JUDICIAL CIRCUIT MAJOR CIVIL CASE MEDIATIONPILOT PROGRAM ATTORNEY FOLLOW-UP INTERVIEW QUESTIONS

PILOT MEDIATION PROGRAM Case #________________________ [] P [] D 1 . a . Wa s me d i a t i o n t h e a p p r o p r i a t e me t h o d f o r t h e r e s o l u t i o n o f t h i s c a se ' [ ] Yes [ ] No Why? Why no t ?

b . H a v e y o u b e e n i n v o l v e d i n a n a r b i t r a t e d c a s e i n t h e 1 7 t h C i r c u i t ? [ ] Y e s [ ] N o I f s o , p l e a s e c o mpa r e y o u r p e r c e p t i o n o f t h e me d i a t i o n p r o c e s s t o a r b i t r a t i o n .

c . P l e a s e c o mpa r e y o u r p e r c e p t i o n o f a t t e mp t e d s e t t l e me n t t h r o u g h me d i a t i o n a s c o mp a r e d t o t r a d i t i o n a l s e t t l e me n t n e g o t i a t i o n s , e s p . , p r e - t r i a l c o n f e r e n c e s . 2 . a . Wh a t w e r e t h e b a r r i e r s t o t h e r e s o l u t i o n o f t h i s c o n f l i c t ?

b . H o w d i d t h e me d i a t i o n p r o c e s s a f f e c t t h e s e b a r r i e r s ? ( p r o b e , e x ) p a r t i e s t o o f a r a p a r t ? P e r s o n a l i t i e s o f t h e l a w y e r s ? L e g a l p r i n c i p l e s t o b e a d j u d i c a t e d ? P s y c h o l o g i c a l b a r r i e r s : 1 ) o v e r - c o n f i d e n c e , 2 ) r e a c t i v e d e v a l u a t i o n , 3 ) l o s s a v e r s i o n � t a k e o f f e r n o w v s . u n c e r t a i n t y o f g o i n g t o t r i a l ) 3 . Wha t d o y o u b e l i e v e t o b e t h e p r i ma r y r e a s o n a me d i a t e d s e t t l e me n t w a s / w a s n o t r e a c h e d i n t h i s c a s e ? 4 . a . H o w w e l l o f a j o b d i d t h e me d i a t o r d o ? C o mpa r e t h i s w i t h y o u r e x p e r i e n c e s w / j u d g e s i n p r e - t r i a l c o n f e r e n c e s .

b . Wh a t i n p u t d i d t h e me d i a t o r h a v e o n t h e s e s s i o n ? H o w d i d y o u r e s p o n d / h a n d l e t h i s ?

Attorney follow-up Interview Questions Page 2 Case #__________________________ 5 . I f a s e t t l e me n t w a s n o t r e a c h e d , w h a t i mp a c t w i l l t h e me d i a t i o n s e s s i o n h a v e o n r e s o l v i n g t h i s c a s e i n t h e f u t u r e ? 6 . D i d o p p o s i n g c o u n s e l t a k e a c o o p e r a t i v e o r c o mpe t i t i v e a p p r o a c h t o n e g o t i a t i o n ? 7 . D i d y o u t a k e a c o o p e r a t i v e o r c o mpe t i t i v e a p p r o a c h t o n e g o t i a t i o n ? 8 . Wo u l d y o u l i k e t o d i s c u s s a n y t h i n g e l s e r e g a r d i n g t h e me d i a t i o n p r o g r a m? Wha t r e c o mme n d a t i o n s d o y o u h a v e f o r t h i s me d i a t i o n p r o g r a m?

17TH JUDICIAL CIRCUIT MAJOR CIVIL CASE MEDIATIONPILOT PROGRAM MEDIATOR FOLLOW-UP INTERVIEW QUESTIONS

PILOT MEDIATION PROGRAM Mediator:__________________________________ 1 . a . O v e r a l l , d i d y o u f e e l me d i a t i o n w a s t h e a p p r o p r i a t e me t h o d f o r t h e r e s o l u t i o n o f t h e c a s e s y o u h a v e me d i a t e d ? [ ] Yes Why? [ ] No Why no t ?

c . P l e a s e c o mpa r e y o u r p e r c e p t i o n o f s e t t l e me n t t h r o u g h me d i a t i o n a s c o mpa r e d t o a d j u d i c a t i o n , e s p . p r e - t r i a l c o n f e r e n c e . 3 . Wh a t s o r t o f b a r r i e r s t o t h e r e s o l u t i o n o f t h e c o n f l i c t s e x i s t e d ? H o w d i d t h e me d i a t i o n p r o c e s s a f f e c t t h e s e b a r r i e r s ? ( p r o b e , e x ] p a r t i e s t o o f a r a p a r t ? P e r s o n a l i t i e s o f t h e l a w y e r s ? L e g a l p r i n c i p l e s t o b e a d j u d i c a t e d ? P s y c h o l o g i c a l b a r r i e r s : 1 ) o v e r - c o n f i d e n c e , 2 ) r e a c t i v e d e v a l u a t i o n , 3 ) l o s s a v e r s i o n ) Wha t d o y o u b e l i e v e t o b e t h e p r i ma r y r e a s o n a me d i a t e d s e t t l e me n t w a s / w a s n o t r e a c h e d i n e a c h o f t h e c a s e s ? 4 . Wh a t t a c t i c s d i d y o u e mp l o y t o a s s i s t t h e p a r t i e s r e a c h a g r e e me n t , w a s i t c o n s i s t e n t f o r e a c h s e s s i o n o r d i d y o u a d a p t y o u r s t y l e d e p e n d i n g o n t h e p a r t i e s / a t t o r n e y i n v o l v e d ? 5 . O v e r a l l , h o w w e l l p r e p a r e d w e r e t h e a t t o r n e y s ? Wa s t h e i r a t t i t u d e a n d c o n d u c t c o n d u c i v e t o r e s o l v i n g t h i s d i s p u t e ? We r e t h e a t t o r n e y s o f e q u a l e x p e r i e n c e ? C a l i b e r ? D i d t h i s a f f e c t t h e me d i a t i o n s e s s i o n s ? I f s o , h o w d i d y o u h a n d l e t h i s ? D i d t h e y t a k e a c o o p e r a t i v e o r c o mp e t i t i v e a p p r o a c h t o n e g o t i a t i o n ? 6 . I n a n y o f t h e s e s s i o n s , d i d y o u d e t e c t a n y d i s c o mf o r t b e t w e e n t h e d i s p u t a n t s ? A t t o r n e y s ? I f y e s , h o w d i d i t a f f e c t t h e s e s s i o n ? H o w d i d y o u h a n d l e t h i s ?

M e d i a t o r F o l l o w - u p I n t e r v i e w Q u e s t i o n s P a g e 2 7 . We r e t h e s u mma r i e s f u r n i s h e d t o y o u p r i o r t o t h e s e s s i o n o f h e l p t o y o u d u r i n g t h e me d i a t i o n p r o c e s s ? H o w c a n t h e y b e mor e h e l p ? B e t t e r ? H o w muc h t i me d o y o u u s u a l l y s p e n d p r e p a r i n g f o r t h e s e s s i o n s ? 8 . Wo u l d y o u l i k e t o d i s c u s s a n y t h i n g e l s e r e g a r d i n g t h e me d i a t i o n p r o c e s s ? Wha t r e c o mme n d a t i o n s d o y o u h a v e f o r t h i s me d i a t i o n p r o g r a m? T h a n k y o u f o r y o u r t i me a n d c o o p e r a t i o n !

APPENDIX "E"UPDATED PILOT PROGRAM STATISTICS

REVIEW OF THE 17th JUDICIAL CIRCUITMAJOR CIVIL CASE MEDIATION PILOT PROGRAM

MARCH 1, 1993 - OCTOBER 5, 1994

Results of Mediated Cases

Agreement 54%

Partial Agreement3%

No Agreement43%

A total of 147 cases have completed mediation. Figure does not include cases which have met for one mediation and a second mediation session is pending. Also omitted are referrals that have not been heard.

Documents

MAJOR CIVIL CASE MEDIATION PILOT PROGRAM · Settlement Rates - Other Factors––––––––––––––––––– 16 ... Personal injury cases make up the bulk